University  of  California  •  Berkeley 


PKOCEEDOGS 


OF   THE 


NAVAL  COURT  MARTIAL 


IN    THE    CASE    OF 


ALEXANDER  SLIDELL  MACKENZIE, 

A  COMMANDER  IN  THE  NAVY  OF  THE  UNITED  STATES,  &c. 

INCLUDING 

THE  CHARGES  AND  SPECIFICATIONS  OF  CHARGES, 

PREFERRED  AGAINST  HIM  BY  THE  SECRETARY  OF  THE  NAVY. 

\ 

TO  WHICH  IS  ANNEXED, 

AN  ELABORATE   REVIEW, 

BY  JAMES  FENNIMORE  COOPER. 


NEW    YORK: 
HENRY   G.   LANGLEY,    8   ASTOR   HOUSE. 

1844. 


JAITAJ 


Entered,  according  to  Act  of  Congress,  in  the  year  1844, 
BY  HENRY  G.  LANGLEY, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  for  the 
Southern  District  of  New  York. 


. 


• 


ADVERTISEMENT. 


THE  following  pages  comprise  an  authentic  account  of  the  Official  Proceedings 
of  the  Naval  Court  Martial,  convened  in  the  case  of  ALEXANDER  SLIDELL  MACKENZIE, 
including  the  several  Charges  and  Specifications  adduced  against  him  by  the  late 
Secretary  UPSHER,  of  the  United  States  Navy.  The  intense  and  absorbing  interest 
awakened  amongst  all  classes  of  the  community  in  our  land,  as  well  as  abroad,  on 
the  first  announcement  of  the  events  that  occurred  on  board  the  brig  Somers,  cannot, 
it  is  believed,  have  so  abated  as  to  render  the  present  volume — combining  the  only 
complete  historical  record  yet  offered — unacceptable  to  the  public.  To  which  is 
added  a  Review,  by  Mr.  J.  FENNIMORE  COOPER. 


CHARGES    AND    SPECIFICATIONS. 


CHARGES  AND  SPECIFICATIONS  OF  CHARGES  PREFERRED  BY  THE  SECRETARY  OF  THE  NAVY, 
AGAINST  ALEXANDER  SLIDELL  MACKENZIE,  A  COMMANDER  IN  THE  NAVY  OF  THE 
UNITED  STATES,  TO  WIT  : 

CHARGE  I. 

MURDER  ON  BOARD  A  UNITED  STATES  VESSEL  ON  THE  HIGH  SEAS. 

Specification  1st. — In  this  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
of  the  navy,  commanding  the  United  States  brig  Somers,  being  on  the  high  seas, 
to  wit,  in  17°  34'  28"  north  latitude,  and  57°  57'  45X/  west  longitude,  from 
Greenwich,  or  thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen  hundred 
and  forty-two,  did  then  and  there,  without  form  of  law,  wilfully,  deliberately, 
'•and  with  malice  aforethought,  hang  and  caused  to  be  hanged  by  the  neck,  at  the 
main  yard-arm  of  the  aforesaid  brig,  until  he  was  dead,  Philip  Spencer,  an  acting 
midshipman,  then  in  the  service  of  the  United  States,  thereby  violating  the  21st 
article  of  the  act  of  Congress,  entitled,  "  An  act  for  the  better  government  of  the 
navy  of  the  United  States,"  approved  April,  23d,  1800. 

Specification  2d. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
of  the  navy,  commanding  the  United  States  brig  Somers,  being  on  the  high  seas, 
to  wit,  in  17°  34'  28"  north  latitude,  and  57°  57'  45"  west  longitude  from  Green- 
wich, or  thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen  hundred  and 
forty-two,  did,  then  and  there,  without  form  of  law,  wilfully,  deliberately,  and 
with  malice  aforethought,  hang  and  cause  to  be  hanged  by  the  neck,  at  the  main 
yard-arm  of  the  aforesaid  brig,  until  he  was  dead,  Samuel  Cromwell,  a  boatswain's 
mate,  then  in  the  service  of  the  United  States,  and  borne  on  the  muster-roll  of 
said  brig,  thereby  violating  the  21st  article  of  the  1st  section  of  the  act  of  Congress, 
entitled,  "  An  act  for  the  better  government  of  the  navy  of  the  United  States," 
approved  April  23d,  1800. 

Specification  3d. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
of  the  navy,  commanding  the  United  States  brig  Somers,  being  on  the  high  seas, 
to  wit,  in  17°  34'  28"  north  latitude,  and  57°  57'  45"  west  longitude  from  Green- 
wich, or  thereabouts,  on  the  first  day  of  December,  eighteen  hundred  and 


2  CHARGES   AND   SPECIFICATIONS. 

forty-two,  did,  then  and  there,  without  form  of  law,  wilfully,  deliberately,  ai 
with  malice  aforethought,  hang  and  cause  to  be  hanged  by  the  neck  at  the  main 
yard-arm  of  the  aforesaid  brig,  until  he  was  dead,  Elisha  Small,  a  seaman,  then  ia 
the  service  of  the  United  States,  and  borne  on  the  muster-roll  of  said  brig,  thereby 
violating  the  21st  article  of  the  1st  section  of  the  act  of  Congress,  entitled,  "An 
act  for  the  better  government  of  the  navy  of  the  United  States,"  approved  April 
23d,  1800. 

CHARGE   II. 

OPPRESSION. 

, 

Specification  1st. — In  this,  that  the  said  Commander  Alexander  ^lidell  Mackenzie, 
of  the  navy,  commanding  the  United  States  brig  Somers,  being  on  the  high  sea?, 
to  wit,  in  17°  34'  28"  north  latitude,  and  -57°  57'  45  '  west  longitude  from 
Greenwich,  or  thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen  hun- 
dred and  forty-two,  did,  then  and  there,  without  a  good  and  sufficient  cause,  and 
without  form  of  law,  oppressively  kill,  by  hanging,  and  causing  to  be  hanged  by 
the  neck,  at  the  main  yard-arm  of  the  aforesaid  brig,  Philip  Spencer,  an  acting 
midshipman,  then  in  the  service  of  the  United  States,  thereby  violating  the  3d 
article  of  the  1st  section  of  the  act  of  Congress,  entitled,  "  An  act  for  the  better 
government  of  the  navy  of  the  United  States,"  approved  April  23d,  1800. 

Specification  2<Z. — In  this,  that  the  said  Alexander  Slidell  Mackenzie,  a  com- 
mander in  the  navy,  commanding  the  United  States  brig  Somers,  being  on  the 
high  seas,  to  wit,  in  17°  34'  28"  north  latitude,  and  57°  57'  45"  west  longitude 
from  Greenwich,  or  thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen 
hundred  and  forty-two,  did,  then  and  there,  without  a  good  and  sufficient  cause, 
and  without  form  of  law,  oppressively  kill,  by  hanging  and  causing  to  be  hanged  by 
the  neck,  at  the  main  yard-arm  of  the  aforesaid  brig,  Samuel  Cromwell,'  a  boat- 
swain's mate,  then  in  the  service  of  the  United  States,  and  borne  on  the  muster- 
roll  of  said  bri£,  thereby  violating  the  3d  article  of  the  1st  section  of  the  act  of 
Congress,  entitled,  "  An  act  for  the  better  government  of  the  navy  of  the  United 
States,"  approved  April  23d,  1800. 

Specification  3d. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
of  the  navy,  commanding  the  United  States  brig  Somers,  being  on  the  high  seas, 
to  wit,  in  17°  34'  28"  north  latitude,  and  57°  57'  45X'  west  longitude  from 
•Greenwich,  or  thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen  hundred  and 
forty-two,  did,  then  and  there,  without  good  and  sufficient  cause,  and  without  form 
of  law,  oppressively  kill,  by  hanging  and  causing  to  be  hanged,  by  the  neck,  at  the 
main  yard-arm  of  the  aforesaid  brig,  Elisha  Small,  a  seaman,  then  in  the  service  of 
the  United  States,  and  borne  on  the  muster-roll  of  said  brig,  thereby  violating  the 
3d  article  of  the  1st  section  of  the  act  of  Congress,  entitled,  "  An  act  for  the 
better  government  of  the  navy  of  the  United  States,"  approved  April  23d,  1800. 


CHARGES  AND  SPECIFICATIONS. 
CHARGE   III. 

ILLEGAL    PUNISHMENT. 

Specification  Isi. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
commanding  the  United  States  brig  Somers,  being  on  the  high  seas,  to  wit,  in  17° 
34'  28"  north  latitude,  and  57°  57V  45"  west  longitude,  from  Greenwich,  or  there- 
abouts, on  the  first  day  of  December,  A.  D.  eighteen  hundred  and  forty-two,  did 
then  and  there  exceed  the  limits  of  his  authority,  and  violate  the  thirtieth  article 
of  the  act  of  Congress,  entitled  "An  act  for  the  better  government  of  the  navy  of 
the  United  States,"  approved  April  23d,  1800,  by  hanging  and  causing  to  be 
hanged,  by  the  neck,  to  the  main  yard-arm  of  the  said  brig,  until  he  was  dead, 
Philip  Spencer,  an  acting  midshipman,  then  in  the  service  of  the  United  States. 

Specification  2d. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
commanding  the  United  States  brig  Somers,  being  on  the  high  seas,  to  wit,  in  17° 
34'  28"  north  latitude,  and  57°  57'  45"  west  longitude,  from  Greenwich,  or 
thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen  hundred  and  forty-two, 
did  then  and  there  exceed  the  limits  of  his  authority,  and  violate  the  thirtieth 
article  of  the  act  of  Congress,  entitled,  "  An  act  for  the  better  government  of  the 
navy  of  the  United  States,"  approved  April  23d,  1800,  by  hanging  and  causing 
to  be  hanged,  by  the  neck,  to  the  main  yard-arm  of  the  said  brig,  until  he  was 
dead,  Samuel  Cromwell,  a  boatswain's  mate,  then  in  the  service  of  the  United 
States,  and  borne  on  the  muster-roll  of  said  brig. 

Specification  3d. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
commanding  the  United  States  brig  Somers,  being  on  the  high  seas,  to  wit,  in  17° 
34'  28"  north  latitude,  and  57°  57'  45"  west  longitude,  from  Greenwich,  or 
thereabouts,  on  the  first  day  of  December,  A.  D.  eighteen  hundred  and  forty-two, 
did  then  and  there  exceed  the  limits  of  his  authority,  and  violate  the  thirtieth 
article  of  the  act  of  Congress,  entitled,  "  An  act  for  the  better  government  of 'the 
navy  of  the  United  States,"  approved  April  23d,  1800,  by  hanging  and  causing 
to  be  hanged,  by  the  neck,  to  the  main  yard-arm  of  the  said  brig,  until  he  was 
dead,  Elisha  Small,  a  seaman,  then  in  the  service  of  the  United  States,  and  borne 
on  the  muster-roll  of  said  brig. 

CHARGE  IV. 


CONDUCT  UNBECOMING  AN  OFFICER. 


Specification  1st. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
commanding  the  United  States  brig  Somers,  while  in  latitude  17°  34' 28"  north, 
and  longitude  57°  57'  45"  west  from  Greenwich,  or  thereabouts,  did,  contrary  to 
the  provisions  of  article  32d  of  the  act  of  Congress,  entitled,  "  An  act  for  the 
better  government  of  the  navy  of  the  United  States,"  approved  April  23d,  1800, 
OD  the  first  day  of  December,  A.  D.  eighteen  hundred  and  forty-two,  behave  in 


4  CHARGES   AND   SPECIFICATIONS. 

an  unofficer-like  and  unfeeling  manner,  by  addressing  taunting  and  unofficer-like 
language  to  Philip  Spencer,  an  acting  midshipman  on  board  said  brig,  in  the  service 
of  the  United  States,  the  said  Spencer  then  and  there  expecting  the  immediate 
execution  of  death  upon  him  by  the  orders  of  said  Commander  Mackenzie, 

CHARGE  V. 

CRUELTY  AND  OPPRESSION. 

Specification. — In  this,  that  the  said  Commander  Alexander  Slidell  Mackenzie, 
of  the  navy,  commanding  the  United  States  brig  Somers,  while  on  her  last  cruise, 
to  wit,  between  the  thirteenth  day  of  September,  eighteen  hundred  and  fotfy-two, 
and  the  twenty-fifth  day  of  December,  of  said  year,  did  oppressively  and  cruelly 
use  and  maltreat  the  crew  of  said  brig,  and  inflict  upon  them  cruel  and  unnecessary 
punishments,  in  violation  of  the  3d  article  of  the  1st  section  of  the  act  of  Con- 
gress, entitled,  "  An  act  for  the  better  government  of  the  navy  of  the  United 
States,"  approved  23d  April,  1800. 

A.  P.  UPSHUR, 

Secretary  of  the  Navy. 

NAVY  DEPARTMENT,  January  23,  1843. 


PROCEEDINGS 


OF 


THE  NAVAL  COURT  MARTIAL 


U.  S.  SHIP  NORTH  CAROLINA,  > 
New  York,  Feb.  1,  1843.      $ 
In  consequence  of  the  absence  of  Commo- 
dore Dovvnes  the  Court  was  not  convened, 
but  the  members  present  were  brought  to 
order  at  10  o'clock,  by  Commodore  Read. 
The  roll  was  called.     Present — 
Captain  Read,          Captain  Bolton, 
"       Turner,  "       McKeever, 

"       Page,  "       Gwinn, 

Com'dr.  Shubrick,  Com'dr  Ogden, 
Win.  H,  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Mackenzie,  the 
accused. 

The  members  present  then  adjourned  to 
to-morrow,  February  2,  at  11  o'clock. 


U.  S.  SHIP  NORTH  CAROLINA,  > 
New  York,  Feb.  2,  1843.      $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Captain  Downes  having  con- 
vened the  Court,  the  precept  was  read  by 
the  Judge  Advocate,  as  follows : 

To  Captain  JOHN  DOWNES, 

of  the  United  States  Navy  : 

By  virtue  of  the  authority  contained  in 
the  act  of  Congress,  approved  the  23d 
April,  A.  D.  1800,  for  the  better  govern- 
ment of  the  Navy  of  the  United  States,  a 
Naval  General  Court  Martial  is  hereby  or- 
dered to  convene  at  New  York,  on  board 
the  North  Carolina,  on  the  first  day  of  Feb- 
ruary, 1843,  or  as  soon  thereafter  as  practi- 
cable, for  the  trial  of  such  persons  as  may 
be  legally  brought  before  it. 

The  Court  is  to  be  composed  of  the  fol- 
lowing named  officers,  any  live  of  whom 
are  empowered  to  act,  viz  : 


Captain  John  Downes, 

George  C.  Read, 
William  C.  Bolton, 
Daniel  Turner, 
John  D.  Sloat, 
Joseph  Smith, 
Isaac  McKeever, 
John  H.  Aulick, 
Bladen  Dulany, 
John  Gwinn, 
Thorny  W.  Wyman, 
Com'dr  Henry  W.  Ogden, 
"       William  W.  McKean, 

Members, 

and  William  H.  Norris,  Esq.,  of  Baltimore, 
Judge  Advocate. 

A.  P.  UPSHUR. 
NAVY  DEPARTMENT,  Jan.  23,  1843. 

The  precept  having  been  read,  the  Judge 
Advocate  read  the  following  letter  from  the 
Honorable  Secretary  of  the  Navy : 

NAVY  DEPARTMENT,  > 
January  23,  1843.     > 

SIR  :  Enclosed  you  will  receive  a  precept 
for  a  Naval  General  Court  Martial,  to  con- 
vene at  New  York  on  the  first  day  of  Feb- 
ruary next,  or  as  soon  thereafter  as  practi- 
cable, for  the  trial  of  Commander  Alexander 
Slidell  Mackenzie  and  such  others  as  may 
be  brought  before  it,  of  which  Court  you  are 
the  senior  officer,  and  at  which  time  and 
place  you  are  required  to  give  your  attend- 
ance. 

The  charges  and  specifications  in  the 
case  of  Commander*  Mackenzie  are  also 
enclosed,  which  you  will  deliver  to  the 
Judge  Advocate,  in  order  that  he  may  make 
the  necessary  preparation  for  the  trial.  To 


PROCEEDINGS  OF  THE 


save  time,  the  charges  have  been  sent  to  the 
Judge  Advocate. 

I  am  respectfully  yours, 

A.  P.  UPSHUR. 

To  Captain  John    Downes,  U.   S.   Navy, 
Boston. 

The  Judge  Advocate  then  read  the  fol- 
lowing letters  : 

NAVY  DEPARTMENT, 

January  28,  1843. 
SIR  :  Commander  W.  W.  McKean  has 
this  day  been  excused  from  serving  on  the 
Court  Martial  to  convene  on  the  1st  prox- 
imo, and  Commander  Irvine  Shubrick  or- 
dered in  his  stead. 

I  am  respectfully  yours, 

A.  P.  UPSHUR, 

To   Captain   John    Downes,  U.   S.  Navy, 
Boston. 

NAVY  DEPARTMENT,  ) 
January  26,  1843.     $ 
SIR  :  Captain  John  H.  Aulick  and  Captain 
Bladen   Dulany  have  been  excused  from 
serving  as  members  of  the  Court  Martial 
ordered  to  convene   at  New  York  on  the 
first  proximo,  and  Captain  Geo.  W.  Storer 
and  Captain  Benjamiri^Page  have  been  or- 
dered as  members  to  supply  their  place. 
I  am  respectfully  your  ob't  serv't, 

A.  P.  UPSHUR. 

To  Captain  John  Downes,  Pres't  N.  G.  C. 
M.,  Boston. 

Commander  Mackenzie  having  been  asked 
by  the  Judge  Advocate  if  he  had  any  objec- 
tions to  make  to  any  of  the  members  of  the 
Court,  replied  in  the  negative. 

The  members  of  the  Court  having  been 
sworn  by  the  Judge  Advocate,  and  the  Judge 
Advocate  by  the  President  of  the  Court,  the 
charges  and  specifications  having  been  read, 
Commander  Mackenzie  pleaded  as  follows  : 

I  admit  that  acting  midshipman  Philip 
Spencer,  boatswain's  mate  Samuel  Crom- 
well, and  seaman  Elisha  Small,  were  put  to 
death  by  my  order,  as  commander  of  the  U. 
S.  brig  Somers,  at  the  time  and  place  men- 
tioned in  the  charges  ;  but,  as  under  the 
existing  circumstances  this  act  was  de- 
manded by  duty  and  justified  by  necessity, 
I  plead  not  guilty  to  all  the  charges. 

I  have  the  honor  to  be,  very  respectfully, 
your  most  obedient, 

ALEX'R  SLIDELL  MACKENZIE, 

Commander. 

U.  S.  SHIP  NORTH  CAROLINA. 


The  Judge  Advocate  then  read  the  fol- 
lowing paper : 

The  Judge  Advocate,  before  the  examin- 
ation of  testimony  begins,  desires  to  state 
to  the  Court  that  he  does  not  regard  him- 
self as  occupying  the  position  of  a  prose- 
cuting law  officer  in  the  civil  tribunals.  His 
duty  he  believes  akin  to  that  which  was 
devolved  on  the  English  judges  at  that 
time  when  traversers  were  put  on  trial, 
without  the  privilege  of  counsel.  A  prose- 
cuting officer  in  the  American  courts,  where 
the  benefit  of  assistance  is  always  allowed, 
the  defendant  usually  contents  himself  with 
presenting  a  prima  facie  case,  and  if  com- 
pelled  to  resort  to  witnesses  believed  to 
have  a  favorable  feeling  to  the  defendant, 
studiously  uses  no  more  than  are  absolutely 
indispensable  ;  because  otherwise  he  would 
be  prevented  from  sifting  their  testimony  by 
cross-examination,  or  attacking  it  by  way  of 
positive  impeachment  of  character,  should 
they  bear  witness  contrary  to  what  he  be- 
lieves to  be  the  truth,  the  principle  being 
that  no  one  shall  thus  discredit  his  own 
witness.  But  I  must  not  be  made  to  take 
a  position  at  all  disabling  me  from  extract- 
ing the  truth  of  this  transaction.  I  could, 
by  a  single  witness,  prove  the  hanging  of 
midshipman  Spencer  and  seamen  Crom- 
well and  Small,  by  the  orders  of  commander 
Mackenzie,  and  then  close  the  case ;  the 
rule  of  law  being,  that  after  the  death  is 
shown  to  have  occurred,  actually  or  con- 
structively, by  the  defendant,  it  is  presumed 
to  be  murder,  and  it  is  his  duty  to  prove  a 
minor  degree  of  criminality,  or  his  entire 
justification  or  excusability  in  effecting  it. 
This  would  be  the  general  course  in"  civil 
judicature,  in  order  to  retain  the  rights  of 
cross-examination  and  impeachment. 

The  duty  of  a  judge  advocate  is,  as  I 
have  stated,  supposed  to  be  that  of  the  Eng- 
lish judge  in  cases  without  the  privilege  of 
counsel ;  but  the  judge's  rights  were  to  ask 
questions  that  would  be  legal,  from  either  side . 

I  sh?.ll  not  expect,  therefore,  to  be  re- 
stricted by  the  technical  rules  in  these  par- 
ticulars, and  be  treated  and  restrained  as  an 
ordinary  prosecutor.  I  wish  to  elicit  the 
whole  truth,  whether  favorable  or  adverse 
to  the  defendant,  and  if  I  do  not  extract 
what  legally  ought  to  serve  him,  equally 
with  his  own  counsel,  it  will  be  only  from  in- 
ferior capacity,  knowledge,  and  that  sagacity 
which  a  partisan  feeling  does  only  give. 


NAVAL  COURT  MARTIAL. 


But  I  must  be  apprized  in  advance  by 
defendant  arid  his  counsel  of  their  intended 
course.  Do  they  design  not  to  contest  my 
privilege  to  ask  any  question  that  would  be 
legal,  from  either  side,  or  is  it  meant,  after 
the  manner  of  slovenly  practice  before  courts 
martial,  to  insist  upon  my  duty,  as  the 
English  judge,  for  the  benefit  of  the  defend- 
ant, but  as  the  American  prosecutor,  for  the 
disadvantage  of  the  government. 

I  therefore  most  respectfully  desire  of 
defendant  and  his  counsel,  to  signify  what 
position  they  would  prefer  the  Judge  Advo- 
cate to  occupy.  If  I  am,  without  excep- 
tion, not  to  have  the  liberty  of  an  examina- 
tion in  the  nature  of  a  cross-examination  of 
my  own  witnesses,  in  such  cases  as  my 
judgment  would  imply  it  as  necessary,  for 
the  obtainment  of  truth,  let  the  defendant 
say  so,  and  I  shall  conduct  this  case  after 
the  manner  of  a  law  officer  in  ordinary 
cases  before  a  civil  tribunal — I  shall  call 
only  the  witnesses  who  will  make  the  case 
against  the  defendant. 

This  is  thought  by  government  to  be  a 
case  of  great  importance,  and  it  is  not  un- 
likely that  an  associate  of  masterly  ability, 
and  whose  capacity  has  been  enabled  by 
age  to  command  the  respect  of  the  whole 
country,  may  be  sent  me  as  a  coadjutor. 

In  consultation  thereof  of  public  opinion, 
I  shall  not  proceed  in  the  trial  till  I  am  ad- 
vised whether  such  is  the  design  of  the 
government — a  delay  very  desirable  and 
expedient  under  any  event,  as  I  foresee  an 
important  point  at  the  outset  of  this  case, 
which  I  have  not  had  opportunity,  from  the 
recency  of  my  appointment,  and  the  diffi- 
culty of  commanding  the  use  of  books  when 
away  from  one's  own  office,  of  thoroughly 
examining. 

The  Judge  Advocate  wishing  this  state- 
ment to  go  on  the  record,  the  Court  was 
cleared,  that  the  question  might  be  con- 
sidered. 

Upon  the  opening  of  the  Court  it  was 
stated  by  the  Judge  Advocate,  that  it  was 
ordered  by  the  Court  that  the  paper  sub- 
mitted by  the  Judge  Advocate  go  upon  the 
proceedings,  and  that  the  letter  of  appoint- 
ment of  the  Judge  Advocate  be  read. 

NAVY  PEPARTMENT,  > 
January  25,  1843.    $ 
SIR  :  You  are  appointed  Judge  Advocate 
to  a  Court  Martial  to  convene  at  New  York 


!  on  the  1st  proximo.     You  will  please  in- 
form   this    department    whether   you   will 
accept.     Enclosed  are  charges  and  specifi- 
cations against  Commander  Mackenzie. 
I  am  respectfully, 

Your  ob't  serv't, 

A.  P.  UPSHUR. 
To  W.  H.  Norris,  Esq.,  Baltimore. 

The   Court   then   adjourned   to    Friday, 
Feb.  3,  at  10  o'clock. 


U.  S.  SHIP  NORTH  CAROLINA, 

New  York,  Feb.  3,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
Read,  "       Page, 

Boltori,  "        Gwinn, 

Turner,  Wymari, 

Sloat,          Com'dr  Ogden, 
Storer,  "        Shubrick, 

Members, 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Mackenzie,  ac- 
cused. 

Captain  Joseph  Smith,  in  consequence  of 
indisposition,  was  unable  to  attend,  but  sent 
the  following  certificate,  which  was  read  by 
the  Judge  Advocate : 

U.  S.  NAVY  YARD, 
Brooklyn,  Feb.  3,  1843. 
I    hereby  certify   that    Captain   Joseph 
Smith  is  unable  to  attend  the   Court  this 
day,  in  consequence  of  severe  indisposition. 
Respectfully, 

JOHN  HASLETT,  Surgeon. 
To  the  President  of  the  Naval  Court  Mar- 
tial, convened  on  board  the  U.  S.  ship 
North  Carolina. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

The  Court  was  then  cleared. 

On  the  opening  of  the  Court,  the  follow- 
ing paper  was  submitted  by  the  counsel  of 
Commander  Mackenzie : 

The  counsel  for  defendant  beg  leave  most 
respectfully  to  state,  that  in  giving  their  as- 
sent to  the  position  of  the  Judge  Advocate, 
that  his  functions  are  in  a  measure  judicial, 
that  he  is  bound  in  this  discharge  to  protect 
the  rights  of  the  accused,  they  are  not  to  be 
considered  as  consenting  to  any  departure 


8 


PROCEEDINGS  OF  THE 


from  established  course  in  the  mode  of  con- 
ducting the  prosecution,  or  to  any  violation 
of  the  known  rules  of  evidence,  the  observ- 
ance of  which  they  believe  to  be  essential 
to  the  discovery  of  truth,  the  administration 
of  justice,  the  preservation  of  the  rights  of 
the  navy. 

JOHN  DUER,  for  himself. 

GEORGE  GRIFFEN. 

The  Court  was  again  cleared,  and  on 
opening  it,  the  Judge  Advocate  informed 
Commander  Mackenzie  that  his  paper,  with- 
drawing his  assent  to  the  paper  of  yesterday, 
read  by  the  Judge  Advocate,  should  be  put 
on  record. 

The  Judge  Advocate  then  submitted  the 
following  paper,  which  was  read  : 

The  Judge  Advocate  states  to  the  Court 
that  he  has  not  been  furnished  by  the  De- 
partment, as  yet,  with  any  list  of  witnesses 
on  the  part  of  the  government ;  that  he  has 
had  no  opportunity  of  conversing  with  any 
of  the  witnesses,  of  whose  names  he  is  even 
entirely  ignorant,  except  by  rumor  in  respect 
to  a  few  of  them,  and  that  therefore  he  will 
need  time  to  prepare  the  case  by  conversa- 
tion with  the  officers  and  crew  of  the  brig 
Somers,  before  he  can  commence  the  case 
on  the  part  of  the  government.  The  Judge 
Advocate  has  issued  two  subpoenas,  duces- 
tecum,  for  the  record  in  the  case  of  the 
Court  of  Inquiry,  into  the  alleged  mutiny, 
which  have  not  yet  been  returned,  and  by 
which  record  he  could  have  been  notified 
of  the  witnesses  and  facts  to  constitute  the 
case  of  the  government. 

It  is  not  expected  that  any  tedious  delay 
•will  be  required  of  the  patience  of  the  Court. 
The  Judge   Advocate    would   respectfully, 
therefore,  ask  the  Court  to  adjourn  till  to- 
morrow, at  1 1  o'clock,  when  it  is  hoped  no  j 
further  delay  will  be  necessary,  more  espe- 1 
cially  since  the  retraction  of  the  accused's 
counsel  of  the   assent  given  on  yesterday, 
producing  on  the  part  of  the  Judge  Advo- 1 
cate  an  entire  change  of  plan. 

The  Court  then  adjourned  till  to-morrow, 
Saturday,  Feb.  4,  at  1 1  o'clock,  A.  M. 


U.  S.  SHIP  NORTH  CAROLINA,  > 
New  York,  Feb.  4,  1843.      J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 


Captain  Downes,     Captain  McKeever, 
Read,  "        Page, 

Bolton,  "        Gwinn, 

Turner,  "        Wyman, 

Sloat,          Conrdr  Ogden, 
Storer,  "        Shubrick, 

Members, 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Mackenzie,  ac- 
cused. 

Captain  Joseph  Smith,  in  consequence  of 
severe  indispositiou,  was  unable  to  attend, 
but  sent  the  following  certificate,  which  was 
read  by  the  Judge  Advocate  : 

U.  S.  NAVY  YARD,      > 
Brooklyn,  Feb.  4,  1843.  $ 
I   hereby    certify   that    Captain  Joseph 
Smith  is  too  unwell  to  attend  the  Court 
this  day.     Respectfully, 

JOHN  HASLETT,  Surgeon. 
To  the  President  of  the  Naval  Court  Martial 
on  board  the  II.  S.  ship  North  Carolina. 

The  Judge  Advocate  then  read  the  pro- 
ceedings of  yesterday,  and  immediately  af- 
terward stated  that  a  paper  from  two  mem- 
bers of  the  bar  of  the  city  of  New  York, 
had  been  handed  him  for  submission  to  the 
Court.  The  President  said  the  Court  would 
receive  the  paper  and  read  and  consider 
it  in  private,  upon  which  the  Court  was 
cleared. 

Upon  opening  of  the  Court,  the  Judge 
Advocate  read  the  following  paper  and  de- 
cision of  the  Court  thereon  : 

The  undersigned  beg  leave  to  state  to  the 
Court  Martial  assembled  for  the  trial  of  Com- 
mander Alexander  Slidell  Mackenzie,  that 
they  have  been  employed  by  the  relatives  of 
acting  midshipman  Philip  Spencer,  one  of 
the  persons,  for  the  murder  of  whom  Com- 
mander Mackenzie  is  upon  trial,  to  attend 
the  trial  and  to  take  part  therein,  as  such 
counsel,  if  permitted  by  the  Court. 

The  undersigned  therefore  most  respect- 
fully request  that  they  may  be  permitted,  as 
such  counsel,  to  be  present  at  the  trial,  and 
to  examine  and  cross-examine  the  witnesses 
who  may  be  produced,  by  propounding  such 
questions  as  may  be  approved  by  the  Court, 
and  to  offer,  from  time  to  time,  such  sugges- 
tions in  relation  to  the  proceedings,  and  to 
present  such  comments  on  the  testimony, 
when  the  same  shall  have  been  concluded 
(subject  to  the  like  approbation  of  the  Court), 
as  they  may  deem  necessary. 


NAVAL  COURT  MARTIAL. 


The  undersigned  respectfully  submit  that 
the  Court  has  full  power,  in  its  discretion, 
to  grant  the  application  now  made,  and  that 
the  nature  of  the  investigation  to  be  had,  and 
the  interest  naturally  and  justly  felt  therein 
by  those  for  whom  they  appear,  render  it 
proper  that  the  same  should  be  granted  by 
the  Court.  B.  F.  BUTLER, 

CHAS.  O'CONNOR. 

February  4,  1843. 

The  Court,  after  mature  deliberation,  de- 
cide that  the  above  paper  be  put  on  record, 
and  that  the  application  contained  in  it  be 
not  granted. 

The  Court  then  adjourned  to  Monday, 
Feb.  6,  at  10  o'clock. 


TJ.  S.  SHIP  NORTH  CAROLINA,  > 
New  York,  Feb.  6,  1843.      $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
Read, 
Bolton, 
Turner, 
Sloat, 
Smith, 
Storer, 


Page, 
Gwinn, 
"       Wyman, 
Com'dr  Ogden, 

Slmbrick, 

Members, 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

In  consequence  of  the  absence  of  Captain 
Joseph  Smith  from  the  Court  the  last  two 
days  the  Court  was  in  session,  the  journal 
and  proceedings  of  those  days  were  read 
over. 

The  Court  was  then  cleared,  at  the  sug- 
gestion of  Captain  Smith,  that  his  absence 
at  the  time  of  the  vote  was  taken  on  the  ap- 
plication preferred  by  Messrs.  Butler  and 
O'Conner,  might  affect  the  proceedings,  the 
vote  was  reconsidered,  and  the  former  decis- 
ion confirmed. 

Midshipman  Chas.  W.  Hays  being  called 
and  duly  sworn  by  the  President  of  the 
Court,  the  first  charge  and  first  specification 
of  first  charge  were  read  to  him.  Some 
objections  to  this  course  having  been  made 
by  Commander  Mackenzie,  the  Judge  Ad- 
vocate read  a  statement  of  what  he  intended 
should  be  his  course  in  conducting  the  pros- 
ecution. 

The  Court  was  cleared,  and  on  opening 
it,  Commander  Mackenzie  was  informed  by 
2 


the  Judge  Advocate,  that  the  trial  should 
proceed  on  all  the  charges  and  specifica- 
tions in  their  order. 

The  charges  and  specifications  were 
then  read  to  the  witness,  who  testified  as 
follows  : 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name  and  age  ?  Were 
you  on  board  the  U.  S.  brig  Somers  in  her 
last  cruise,  and  in  what  capacity  ? 

A.  My  name  is  Charles  W.  Hays  ;  I  am 
20  years  of  age  ;  I  was  on  board  of  the 
Somers  in  her  last  cruise,  as  midshipman. 

Q.  Was  Acting  Midshipman  Philip  Spen- 
cer arrested,  and  when  ? 

A.  He  was  arrested  on  the  26th  of  No- 
vember, at  evening  quarters. 

Q.  Where  was  he  placed  during  the  time 
of  his  confinement,  and  how  secured  and 
guarded  ? 

A.  He  was  placed  on  the  larboard  arm- 
chest  ;  he  was  secured  in  double  irons  and 
hand-cufFs,  and  was  guarded  the  first  two* 
days  by  the  officer  of  the  deck. 

Q.  Was  he  executed  by  the  orders  of 
Commander  Mackenzie,  on  the  first  of  De- 
cember last,  at  the  time  and  place  men- 
tioned in  the  1st  specification  under  1st 
charge  ? 

A.  He  was  executed  on  the  first  of  De- 
cember, to  the  best  of  my  knowledge,  at  the 
time  and  place  mentioned  in  the  1st  speci- 
fication of  the  1st  charge. 

Q.  From  the  time  of  his  arrest  to  the 
time  of  his  execution,  was  Philip  Spencer 
furnished  with  any  charges  and  specifica- 
tions of  crime  ? 

A.  Not  to  my  knowledge. 

Q.  From  the  time  of  his  arrest  to  the 
time  of  his  execution,  was  any  investigation 
into  Philip  Spencer's  guilt  of  any  crime 
against  the  laws  of  the  navy,  made  by 
Commander  Mackenzie,  or  any  other  officer 
of  the  brig  Somers,  in  the  presence  of  said 
Spencer,  so  that  he  might  confront  the  wit- 
nesses, so  that  he  might  cross-examine 
them,  so  that  he  might  offer  vindicatory 
proof,  so  that  he  might  object  to  the  recep- 
tion of  mere  hearsay  and  belief,  or  other 
illegal  evidence,  as  competent  legal  evi- 
dence against  him  ? 

A.  None  that  I  know  of,  in  his  presence. 

Q.  Under  2d  specification  of  1st  charge, 
was  boatswain's  mate,  Samuel  Cromwell, 
arrested,  and  when  ? 


10 


PROCEEDINGS  OF  THE 


A.  He  was  arrested  on  the  evening  of 
the  27th  of  November. 

Q.  Where  \vas  Cromwell  placed  during 
the  period  of  his  confinement,  and  how  se- 
cured and  guarded  ? 

A.  On  the  starboard  arm-chest,  on  the 
quarter-deck ;  placed  in  double  irons  and 
hand-cuffed  and  guarded  the  first  day  by 
the  officer  of  the  deck. 

Q.  Was  Cromwell  executed,  and  by  order 
of  whom,  on  December  1st,  at  the  time  and 
place  mentioned  in  the  2d  specification  un- 
der 1st  charge  1 

A.  He  was  executed  on  the  1st  of  De- 
cember, at  the  same  time  and  place  as  Mr. 
Spencer,  by  the  order  of  the  commander  of 
the  vessel. 

Q.  From  the  time  of  his  arrest  to  the 
time  of  his  execution,  was  Cromwell  fur- 
nished with  any  charge  and  specifications 
of  crime  ? 

A.  Not  to  my  knowledge. 

Q.  Under  3d  specification  of  1st  charge, 
was  Elisha  Small,  seaman  on  board  the  brig 
Soiners,  executed,  and  by  whose  orders,  on 
the  1st  of  December  last  ? 

A.  He  was  executed  by  the  orders  of 
Commander  Mackenzie,  at  the  same  time 
and  place  as  Mr.  Spencer  and  Cromwell. 

Q.  Under  2d  charge,  1st  specification, 
was  Philip  Spencer,  an  acting  midshipman 
on  board  the  brig  Somers,  executed  the  1st 
of  December  last,  at  the  time  and  place  of 
1st  specification  of  2d  charge,  and  by  whose 
orders  ? 

A.  He  was  an  acting  midshipman,  and 
was  executed  by  the  order  of  Commander 
Mackenzie,  at  the  same  time  and  place  spe- 
cified in  the  1st  specification  to  2d  charge. 

Q.  Was  Samuel  Cromwell  executed  at 
the  same  time  and  place,  on  1st  December 
last,  as  in  2d  specification  to  2d  charge, 
and  by  whose  orders  ? 

A.  He  was  executed  at  same  time  and 
place  as  Mr.  Spencer,  and  by  order  of  Com- 
mander Mackenzie. 

Q.  Was  Elisha  Small  executed  at  the 
time  and  place  in  3d  specification,  2d 
charge,  and  by  whose  orders  ? 

A.  He  was,  and  by  orders  of  Commander 
Mackenzie. 

Q.  Under  3d  charge,  was  Philip  Spen- 
cer executed,  and  by  whose  orders,  at  the 
time  and  place  of  charge  3d,  specification 
1st  ? 

A.  He  was  executed  on  the  1st  of  De- 


cember, by  order  of  Commander  Macken- 
zie, at  the  time  and  place  specified. 

Q.  Was  Samuel  Cromwell  executed,  and 
by  whose  orders,  at  the  time  and  place  of 
charge  3d,  2d  specification  ? 

A.  He  was  executed  by  order  of  Com- 
mander Mackenzie,  at  the  time  and  place 
specified. 

Q.  Wras  Elisha  Small  executed  at  the 
time  and  place  mentioned  in  3d  charge, 
3d  specification,  and  by  whose  orders  ? 

A.  He  wras  executed  by  order  of  Com- 
mander Mackenzie,  at  the  time  and  place 
specified. 

Q.  When  you  speak  of  time  in  the  seve- 
ral specifications,  do  you  mean  civil  or  sea 
account  ? 
'  A.  Civil  time. 

Q.  Under  charge  5th,  to  your  knowledge, 
did  Commander  Mackenzie  oppressively  and 
cruelly  use  and  maltreat  the  crew  of  the 
brig  Somers  during  her  last  cruise,  or  inflict 
on  them  unnecessary  punishment  ? 

A.  No  sir,  by  no  means. 

Commander  Mackenzie  declined  asking 
any  questions  at  that  time. 

The  testimony  of  Midshipman  Charles 
Wr.  Hays  here  closed.  His  evidence  was 
read  to  him  and  corrected  by  him. 

The  Court  was  then  cleared,  and  on  the 
opening  of  it,  Commander  Mackenzie  was 
informed  that  any  evidence  he  might  have 
to  offer  would  be  received. 

J.  W.  Wales  was  then  called,  and  being 
duly  sworn  by  the  President  of  the  Court, 
testified  as  follows  : 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  you  on  board  the  U.  S.  brig 
Somers  in  her  last  cruise,  and  if  so,  in  what 
capacity  ? 

A.  I  was  on  board  in  the  capacity  of 
purser's  steward. 

Q.  Did  you  know  of  any  intended  mutiny 
on  board  that  vessel  ?  If  so,  whence  did 
you  derive  your  information  ? 

A.  I  learnt  it  from  Mr.  Spencer ;  he  in- 
formed me  of  it. 

Q.  State  the  communication  made  to  you 
by  Mr.  Spencer ;  when  made,  and  all  the 
circumstances  connected  therewith. 

A.  He  made  the  communication  to  me 
on  the  evening  of  the  25th  of  November,  in 
the  second  day- watch ;  I  was  standing  for- 
ward by  the  bitts  ;  Mr.  Spencer  came  for- 
ward, and  after  making  a  few  remarks  rela- 


NAVAL  COURT  MARTIAL. 


11 


tive  to  the  weather,  desired  me  to  get  on  the 
top  of  the  booms  with  him,  as  he  had  some- 
thing of  great  importance  to  communicate  to 
me ;  I  got  up  on  the  booms,  and  he  com- 
menced the  conversation  by  asking  me  these 
questions:  "Did  I  fear  death?"  "Was  I 
afraid  of  a  dead  person,  and  dare  I  kill  a 
person  ?"  I  was  much  surprised  at  these  j 
remarks,  and  paused  some  time  to  see  if! 
Mr.  Spencer  was  in  earnest,  and  I  found  he  | 
was  very  serious  in  what  he  was  saying — 
very  much  in  earnest ;  his  whole  mind 
seemed  to  be  wrapped  up  in  what  he  was 
saying  to  me  ;  I  told  him  I  was  not  partic- 
ularly anxious  about  dying  quite  yet — that  I 
had  no  cause  to  fear  a  dead  man — that, 
should  a  man  abuse  me  or  insult  me,  I  i 
thought  I  could  muster  sufficient  courage  to 
kill  him,  if  necessary ;  Mr.  Spencer  re- 
marked, that  he  did  not  doubt  my  courage — 
that  he  knew  it ;  he  then  asked  if  I  could 
keep  a  secret,  and  if  I  would  keep  one  ;  I 
told  him  I  would ;  he  then  requested  me  to 
take  an  oath,  the  purport  of  which  was,  that 
I  should  never  communicate  that,  conversa- 
tion to  any  one,  so  help  me  God  ;  I  took 
the  oath  as  he  directed,  and  he  then  went 
on  to  state  that  he  was  leagued  with  about 
twenty  of  the  brig's  company,  to  murder  all 
the  officers,  take  the  brig,  and  commence 
pirating  ;  he  said  he  had  the  plan  and  sta- 
tions of  the  men  all  drawn  up,  and  he  said 
it  was  then  in  his  neck-handkerchief  around  j 
his  neck  ;  he  desired  me  to  feel  of  it ;  I  felt 
of  the  back  part  of  his  neck-handkerchief, 
and  it  made  a  noise  as  though  there  was 
paper  inside  ;  he  then  went  on  to  state  the 
manner  he  should  proceed  t«  take  her. 

The  affray  would  commence  some  night 
when  he  had  the  mid-watch  ;  some  of  those 
concerned  with  him  would  get  in  a  scuffle 
on  the  forecastle  ;  Mr.  Spencer  would  then 
cause  them  to  be  brought  to  the  mast ;  he 
would  then  call  Mr.  Rogers,  the  officer  of 
the  deck,  to  pretend  to  settle  the  matter  ;  as 
soon  as  Mr.  Rogers  had  got  to  the  gangway, 
they  were  to  seize  him  and  pitch  him  over- 
board ;  they  would  then  have  the  vessel  to 
themselves  ;  he  would  then  proceed  to  sta- 
tion his  men  at  the  hatches,  to  prevent  any- 
one coming  on  deck  ;  the  keys  of  the  arm- 
chest,  he  said,  he  could  lay  his  hands  on  at 
any  moment ;  he  would  then  furnish  his 
men  with  arms  ;  this  done,  he  (Mr.  Spen- 
cer) was  to  proceed  to  the  cabin  and  murder 
,  the  commander  with  the  least  noise  possible ; 


this  done,  he  would'  go  with  some  of  his 
men  to  the  ward-room,  arid  murder  the  ward- 
room and  steerage  officers ;  he  stated  that 
the  officers  had  no  arms,  with  the  exception 
of  the  iirst  lieutenant,  and  all  the  arms  he 
had  was  an  old  cutlass,  which  he  should 
secure  before  the  affray  commenced ;  this 
accomplished,  he  should  come  on  deck, 
have  the  two  after  guns  slewed  round  so  as 
to  rake  the  deck  ;  he  would  then  have  the 
whole  crew  called  on  deck,  and  would  se- 
lect from  among  them  such  as  would  suit 
his  purposes,  the  remainder  he  should  cause 
to  be  thrown  overboard  ;  this  done,  he  should 
proceed  to  clear  the  deck,  by  throwing  over- 
board the  launch  and  all  the  spare  spars  and 
rigging,  as  they  only  tended  to  lumber  up 
the  deck — that,  should  they  stand  in  need 
of  any  spare  spars  or  rigging,  they  could 
easily  supply  themselves  from  the  vessels 
they  captured ;  this  done,  the  brig  was  to 
proceed  to  Cape  St.  Antonio  or  the  Isle  of 
Pines,  one  of  these  places,  and  there  take 
on  board  one  who  was  familiar  with  their 
intended  business,  and  who  was  willing  and 
ready  to  join  them  ;  this  done,  they  were 
to  commence  cruising  for  prizes — that  when- 
ever they  would  take  a  vessel,  they  would 
murder  all  hands,  as  dead  men  told  no  tales, 
he  said  ;  and  after  taking  from  her  that  which 
would  be  of  use  to  them,  they  would  scuttle 
the  vessel,  leaving  no  traces,  of  her;  should 
there  happen  to  be  females  on  board,  he 
would  have  them  taken  to  the  brig,  for  the 
use  of  the  officers  and  men,  using  them  as 
long  as  they  saw  fit ;  after  that,  to  make 
way  with  them. 

Mr.  Spencer  then  called  up  Elisha  Small, 
seaman,  on  board ;  Small  did  not  get  on 
the  booms,  but  stood  on  the  rail. 

Mr.  Spencer  commenced  talking  to  him 
in  Spanish ;  I  could  not  understand  what 
was  said ;  Small  looked  very  much  sur- 
prised ;  Mr.  Spencer  remarked  to  him  hi 
English,  "  Oh,  you  need  not  be  under  any 
apprehension  or  fear  on  his  account,  as  I 
have  sounded  him  pretty  well,  and  find  he 
is  one  of  us ;"  Small  looked  pleased,  and 
said  "  he  was  very  glad  to  hear  it ;"  Mr. 
Spencer  continued  to  converse  a  little  while 
longer  with  Small,  but  I  did  not  hear  what 
was  said ;  Mr.  Spencer  spoke  rather  loud 
once,  and  Small  chicled  him,  saying, "  There 
were  a  number  of  little  pictures  about  who 
had  long  ears,"  alluding  to  the  small  boys  ; 
Small  was  then  called  away  to  execute  some 


12 


PROCEEDINGS  OF  THE 


order ;  Mr.  Spencer  said  to  him  when  he 
was  leaving,  that  he  (Mr.  Spencer)  should 
have  the  mid- watch,  and  desired  to  have 
some  further  conversation  with  him  relative 
to  their  plans  ;  at  the  same  time  he  de- 
sired Small  to  see  that  foretopman  ;  Small 
agreed  to  see  him  again,  and  likewise  to 
see  that  foretopman  ;  he  did  not  specify  by 
name. 

Small  then  left ;  Mr.  Spencer  then  made 
overtures  to  me,  saying  if  I  would  join  them 
he  would  give  me  the  post  of  3d  officer  on 
board  ;  I  made  no  reply ;  he  then  went  on 
to  state  that  the  commander  had  a  large 
amount  of  money  on  board,  that  and  what 
the  purser  had,  he  said,  would  make  a  pret- 
ty little  sum  to  commence  with.  He  then 
asked  me  what  I  thought  of  the  project ;  I 
thought  it  prudent  to  dissemble  as  much  as 
possible  in  order  to  gather  further  intelli- 
gence of  their  movements  ;  I  told  him  I 
Jiked  the  plan,  and  was  favorably  disposed 
toward  it ;  my  duty  then  called  me  away. 
Before  I  left  Mr.  Spencer,  we  agreed  to 
have  another  interview  on  the  morrow,  when 
he  said  he  would  show  me  the  plan  he  had 
drawn  up.  I  then  got  off  the  booms,  so  did 
Mr.  Spencer ;  he  followed  me  as  far  aft  as 
the  gangway,  saying,  "  If  I  breathed  a  syl- 
lable of  that  which  he  had  communicated  to 
me,  that  I  would  be  murdered,  if  he  did  not. 
do  it  some  of  those  concerned  with  him 
would  ;  go  where  I  might  my  life  would  not 
be  worth  a  straw." 

Mr.  Spencer  then  went  below  ;  I  kept  on 
deck  about  fifteen  minutes  after  he  went  be- 
low, and  proceeded  as  far  aft  as  the  com- 
panion-way to  make  known  the  subject  to 
Commander  Mackenzie ;  I  saw  Small  watch- 
ing me  very  closely ;  he  was  about  midships 
of  the  trunk  ;  I  did  not  deem  it  prudent  to  go 
in  the  cabin  at  that  time,  though  I  watched 
for  an  opportunity  so  to  do,  but  was  closely 
watched  by  Small  wherever  I  went ;  I  then 
went  on  the  birth-deck,  and  went  aft  to  the 
steerage  door  with  the  intention  of  making 
it  known  to  the  1st  lieutenant ;  Mr.  Spencer 
was  still  awake  ;  he  raised  up  his  head,  and 
wanted  to  know  "  why  in  the  devil  I  was 
cruising  about  there  at  that  time  of  night, 
and  why  I  did  not  turn  in." 

I  made  no  reply,  but  pretended  to  be  get- 
ting into  the  purser's  store-room ;  I  then 
went  on  the  birth-deck  and  waited  nearly 
an  hour  longer  ;  I  then  went  to  the  steerage 
door,  and  found  that  the  wardroom  lights 


were  out,  and  that  the  wardroom  gentlemen 
had  retired ;  I  then  thought  I  would  let  the 
matter  rest  till  morning,  turned  in,  and  en- 
deavored to  sleep,  but  I  could  not  do  it.  In 
the  morning,  as  soon  as  I  could  get  an  op- 
portunity, I  got  into  the  wardroom  and  then 
made  the  matter  known  to  the  purser,  request- 
ing him  at  the  same  time  to  get  it  to  the  com- 
mander as  soon  as  possible  ;  I  did  not  then 
give  him  the  full  particulars,  but  condensed 
the  matter  as  much  as  possible.  I  then 
went  on  deck,  and  told  Mr.  Gansevoort,  the 
1st  lieutenant,  that  the  purser  wished  to  see 
him  immediately  in  the  wardroom. 

While  I  was  talking  to  Mr.  Gansevoort, 
Cromwell,  Small,  Wilson,  and  M'Kinley, 
gathered  around  us  as  though  they  were 
watching  me  ;  if  I  attempted  to  speak  to  an 
officer  that  day,  the  men  were  dogging  me 
around. 

Mr.  Gansevoort  went  below ;  I  did  not 
see  Mr.  Spencer  again,  although  I  endeav- 
ored to  get  another  interview,  as  he  was 
engaged  with  Green,  a  forecastle  man,  in 
the  foretop  nearly  the  whole  morning ;  that 
is  all  that  passed  on  that  occasion. 

Q.  Did  you,  or  did  you  not,  understand 
from  Mr.  Spencer  at  what  time  the  mutiny 
would  break  out  ?  if  so,  about  what  time  ? 

A.  He  said  very  shortly  and  before  our 
arrival  at  St.  Thomas. 

The  testimony  of  Mr.  Wales  was  here 
suspended ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row, Feb.  7.  at  10  o'clock. 


U.  S.  $HIP  NORTH  CAROLINA,  > 
New  York,  Feb.  7,  1843.       * 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Smith,  "       Shubrick, 

"       Storer,  Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

J._W. .Wales  was  then  recalled.     Com- 
mander  Mackenzie   putting   the    following 


NAVAL  COURT  MARTIAL. 


13 


question,  he  proceeded  in  his  testimony  as 
follows — 

Q.  Continue  your  narrative  of  what  you 
know  of  the  mutiny. 

A.  I  had  no  further  conversation  with  Mr. 
Spencer  at  that  time  ;  I  was  present  on  deck 
when  the  irons  were  put  on  Mr.  Spencer,  it 
was  at  evening  quarters.  I  was  called  on 
deck,  saw  the  officers  all  collected  on  the  quar- 
ter-deck, with  the  exception  of  the  master's 
mate  of  the  forecastle.  I  heard  Commander 
Mackenzie  say  to  Mr.  Spencer,  "  He  under- 
stood he  aspired  to  ihe  command  of  that 
vessel,  that  he  did  not  know  how  he  was  to 
accomplish  it,  unless  he  rode  over  the  dead 
bodies  of  all  the  officers,"  or  words  to  that 
effect.  I  understood  Mr.  Spencer  to  say, 
"  Yes,  sir."  I  was  then  sent  below  to  at- 
tend to  getting  up  the  irons  ;  the  irons  were 
put  on  Mr.  Spencer,  and  he  was  put  on  the 
larboard  arm  chest.  That  night  I  observed 
that  the  crew  appeared  disaffected,  collect- 
ed about  the  vessel  in  knots,  conversing  in 
a  low  tone  ;  I  could  not  hear  what  they  were 
talking  about.  Cromwell  slung  next  to  me  ; 
he  was  called  on  deck  to  obey  some  order ; 
he  went  on  deck,  muttering  curses ;  I  could 
not  understand  what  he  said,  or  who  they 
were  to.  The  next  day  the  crew  continued 
more  disaffected  than  ever ;  an  order  had 
to  be  given  two  or  three  times  before  it  was 
executed,  and  when  they  did  execute  it  they 
would  go  growling  along  as  though  they  did 
not  care  whether  it  was  done  or  not ;  they 
went  slow. 

I  think  it  was  that  day  that  Cromwell  and 
Small  were  confined ;  I  think  it  was  the 
27t.h.  1  noticed  that  the  ^disorder  among 
the  crew  was  continually  increasing,  and  a 
number  of  them  missed  their  muster,  Mc- 
Kinley,  Wilson,  Green,  Nevilles,  and  sev- 
eral others.  The  excuse  they  offered  for 
missing  their  muster  was,  "  that  they  could 
no!  get  along  the  decks  ;"  they  were  congre- 
gate:' ;;  mmd  the  stern  of  the  launch  ;  that 
morning  I  was  officer  in  charge  of  the  pris- 
on (jrs  ;  we  were  holystoning  the  decks;  I 
noiicecj  those  men  who  had  missed  their 
muster  kept  congregating  round  the  stern  of 
the  launch,  and  kept  talking  in  a  secret 
mn  i!u;r,  1  noticed  them  making  signs  to 
tin  prisoners  by  putting  their  hands  up  to 
their  chins  ;  Cromwell  was  laying  on  the 
starboard  arm  chest ;  he  rose  up  in  his  bed. 
1  (o'd  him  if  I  saw  any  more  signs  passing 
beiwcen  them,  I  should  put  him  to  death, 


my  orders  were  to  that  effect ;  he  lay  down 
on  his  bed.  I  then  went  to  the  stern  of  the 
launch,  found  Wilson  had  a  number  of  small 
holystones  collected  there,  and  was  endeav- 
oring to  pull  a  gun  handspike  from  the  stern 
of  the  launch ;  what  his  intentions  were  I 
don't  know.  I  cocked  a  pistol,  and  ordered 
him  in  the  gangway  to  draw  water.  I  told 
him  if  I  saw  him  pulling  on  the  handspike 
I  should  blow  his  brains  out ;  he  then  com- 
menced drawing  water ;  I  kept  him  in  the 
gangway  drawing  water  the  whole  time. 
In  the  morning  I  communicated  this  matter 
to  the  commander,  and  likewise  to  the  1st 
lieutenant.  They  were  watched  so  close 
that  the  next  morning  at  breakfast  time  they 
came  aft,  arid  I  heard  them  say  to  Captain 
Mackenzie  "  something  about  the  business," 
they  were  then  confined  in  double  irons. 
The  crew  still  continued  very  much  dissat- 
isfied, grumbling  the  whole  time,  the  maa- 
ter-at-arms  was  sick  at  the  time,  and  I  at- 
tended to  his  duties,  had  charge  of  the  birth- 
deck.  Their  manner  was  so  insulting  that 
I  had  to  bring  three  or  four  up  for  punish- 
ment ;  the  dissatisfaction  continued  to  in- 
crease (this  was  the  30th  I  think),  and 
continued  until  the  execution  took  place, 
when  I  noticed  a  marked  change  in  their 
manner ;  those  who  were  the  most  unruly 
and  insolent  were  the  first  to  run  and  obey 
an  order ;  they  seemed  to  anticipate  an  or- 
der. 

I  have  frequently  heard  Mr.  Spencer 
speak  very  disrespectfully  of  the  command- 
er in  the  presence  of  the  crew.  When  an 
order  has  been  given  to  make  or  take  in 
sail,  I  have  heard  him  say  that  there  was 
110  necessity  of  making  or  taking  in  sail,  and 
that  the  commander  gave  the  order  merely 
to  see  the  crew  employed.  When  we  were 
at  Mesurado,  as  we  were  going  ashore  in  a 
boat,  the  2d  cutter  I  believe  it  was,  I  heard 
Commander  Mackenzie  observe  to  Mr. 
Spencer  that  he  was  not  in  uniform ;  Mr. 
Spencer  went  over  the  side  muttering.  I 
could  not  understand  what  it  was  and  after 
we  had  got  some  twenty  or  thirty  yards 
from  the  brig  the  commander  hailed  the 
boat,  and  asked  if  we  had  the  American 
ensign  in  the  boat,  Mr.  Spencer  replied 
"  that  we  had  not  got  it,"  and  then  in  a  low 
voice  remarked,  not  loud  enough  for  the 
commander  to  hoar  him,  "  That  he  be  God- 
damned if  he  was  going  back  for  it  either, 
thjT  jamned  old  humbug  go  to  hell."  This 


14 


PROCEEDINGS  OF  THE 


was  said  so  that  the  boat's  crew  could  hear 
it ;  McKinley  was  in  the  boat ;  I  don't  know 
what  others  ;  he  continued  cursing  the  com- 
mander all  the  way  to  the  shore. 
%  About  two  weeks  before  the  mutiny  was 
made  known  to  me,  I  was  standing  forward, 
I  heard  Mr.  Rogers  sing  out,  "  Let  go  some 
brace ;"  Spencer,  Cromwell,  and  Small,  were 
standing  forward  at  the  same  time  ;  they 
were  laughing  and  talking  together,  it  was 
Spencer's  watch  on  deck,  Cromwell  was 
boatswain's  mate  of  the  watch  ;  Mr.  Rogers 
called  two  or  three  times  to  let  go  the  brace, 
they  paid  no  attention  to  it,  but  kept  on 
laughing  and  talking.  Mr.  Rogers  then 
came  forward  himself  and  gave  the  order. 
Commander  Mackenzie  was  on  deck,  sitting 
on  the  round  house  ;  he  sent  for  Mr.  Spencer 
aft ;  Mr.  Spencer  went  aft,  and  when  he 
came  forward  again  he  was  cursing  the 
commander.  I  asked  him  what  was  the 
matter ;  he  said,  "  The  commander  said  I 
do  not  pay  attention  to  my  duty,  and  re- 
quested me  in  future  to  pay  better  attention  ; 
God  dajrm  him,  I_ should  like  to  catch  him 
on  that  round  house  some  of  these  dark 
mghts  and  plunge  him  overboard,  it  will  be 
a~  pleasing  task  to  me  ;"  and  tn~en  muttered 
between  his  teeth,  "  Pll  be  God  damned  if 
1  don't  dp  it,"  or  words  to  that  effect.  I  am 
confident  those  are  the  words  he  used. 

I  have  heard  Cromwell  speak  disrespect- 
fully of  the  commander;  when  getting  under 
way  from  Madeira,  Commander  Macken- 
zie came  forward  and  desired  to  know  why 
some  rigging  had  not  been  attended  to,  and 
told  Cromwell,  as  he  was  chief  boatswain's 
mate,  he  ought  to  have  attended  to  it.  Com- 
mander Mackenzie  went  aft,  and  Cromwell 
further  forward.  Cromwell  said,  after  he 
had  got  forward,  he  did  not  care  a  damn 
whether  the  rigging  was  attended  to  or  not ; 
he  said  the  commander  was  anxious  to  get 
too  much  work  out  of  the  crew,  there  was 
no  necessity  for  getting  under  way  that  night 
(the  night  we  left  Madeira),  at  the  same 
lime  wishing  the  brig  and  the  commander 
further  in  hell  than  they  were  out.  When 
we  left  New-York,  Cromwell's  treatment 
of  the  boys  was  very  tyrannical ;  when 
called  upon  to  inflict  punishment,  he  would 
strike  them  with  all  his  might,  as  though  he 
was  whipping  men. 

I  have  frequently  heard  Commander  Mac- 
kenzie reprove  him  for  striking  so  severely, 
and  has  ordered  him  to  stop.  I  have  heard 


Cromwell  often  curse  the  boys,  and  the 
commander  has  called  him  aft,  and  censured 
him  for  so  doing  in  my  presence.  After  we 
left  Madeira,  between  there  and  Santa  Cruz, 
I  noticed  a  great  change  in  Cromwell's 
treatment  to  the  boys ;  he  would  let  them 
pull  and  haul  him  about,  he  would  be  play- 
ing round  the  decks  with  them,  he  would 
let  the  boys  both  small  and  large  curse  him, 
and  he  would  take  no  notice  of  it.  Mr. 
Spencer  gave  him  $15,  in  money;  I  saw 
Cromwell  give  it  to  the  sergeant  of  marines 
to  take  care  of  for  him  ;  he  remarked  at  the 
time,  it  was  a  pretty  good  present.  I  have 
noticed  Cromwell  and  Mr.  Spencer  in  close 
conversation  at  night,  and  when  any  officer 
has  come  up,  they  have  separated,  and  when 
he  would  leave,  they  would  get  together 
again,  and  talk  in  a  low  voice.  I  could  not 
I  hear  what  they  said  ;  these  meetings  would 
'  take  place  generally  at  night  when  it  was 
dark.  Mr.  Spencer  had  a  way  of  making 
music  with  his  jaw.  I  have  frequently 
heard  him  making  this  music  to  the  men  on 
|  the  forecastle  ;  this  music  was  very  pleasing 
j  to  them ;  they  would  ask  him  to  play  for 
them  for  their  amusement. 

I  was  present,  at  the  execution  of  Spen- 
j  cer,   Cromwell,   and   Small ;  I   saw   Com- 
!  mander  Mackenzie  talking  with  Mr.  Spen- 
|  cer  ;  I  did  not  hear  what  they  said.     After 
!  they  had  got  through  talking,  arrangements 
j  were  made  for  the  execution.     The  prison- 
ers were   conducted  to  the  gangway,  the 
•  place  of  execution  ;  when  Mr.  Spencer  was 
;  going  round  by  the   pump  well,  he  asked 
j  permission  of   Commander  Mackenzie   to 
I  speak  with  me.     It  was  granted  him,  and 
!  he  then  said  to  me,  "  Mr.  Wales,  I  sincerely 
;  trust  that  you  will  forgive  me  for  tampering 
|  with  your  fidelity."     I  told  him,  "  I  did  so 
I  from  the  bottom  of  my  heart,  and  hoped 
jGod  would  forgive    him    also."     He  then 
I  passed  on  to  the  gangway  ;  at  the  gangway  j 
he  met  Small ;  Spencer  extended  his  hand  \ 
1  to  Small,  and  requested  him  to  forgive  him. 
I  could  not  hear  all  that  Small  said,  but  I  ; 
understood  him  to  say,  "  How  can  you  ask  \ 
that  of  me,  Mr.  Spencer,  when  you  have  f 
!  brought  me  to  this."    Commander  Macken-  \ 
\  zie  was  standing  by,  and  said  to  Small,  "  Do 
I  not  go  out  of  the  world  with  any  bad  feel-  \ 
ing  at   your  heart — forgive   him."     Small   (' 
then  replied,  "  Well,  sir,  since  you  request  / 
it,  I   will,"  at  the  same  time  giving  Mr, 
Spencer  his  hand.    Small  then  asked  leave 


NAVAL  COURT  MARTIAL. 


15 


/  to  address  his  shipmates,  which  was  readi- 
ly granted.  He  said,  "  That  he  deserved 
to  die,  that  his  sentence  was  just  and  right ;" 
some  other  remarks  which  I  could  not  un- 
derstand. Small  then  took  leave  of  Lieut. 
Gansevoort ;  Commander  Mackenzie,  stand- 
ing by,  asked  him  "  What  he  had  against 
him,  that. he  would  not  shake  hands  with 
him."  Small  replied,  "  Nothing,  sir  ;  but  I 
did  not  think  you  would  shake  a  poor  fel- 
low's hands  like  mine,  and  bid  him  good- 
by."  The  commander  and  Small  then  shook 
hands  very  cordially ;  both  I  believe  were 
weeping  at  the  time. 

That  is  all  I  recollect  at  this  time. 

IQ.  Were  any  of  the  crew  present  when 
you  heard  Spencer  threaten  that  he  would 
throw  the  commander  overboard  ?  if  so,  who 
/  were  they,  or  what  effect  had  the  language 
of  Mr.  Spencer  upon  them  ? 

A.  Yes,  sir ;  there  was  Cromwell,  Small, 
Wilson,  M'Kinley,  Nevilles,  and  two  or 
three  others,  whose  names  I  do  not  remem- 
ber :  the  effect  of  the  remark  seemed  very 
pleasing — they  smiled;  Mr.  Spencer  went 
on  talking  with  them. 

Q.  What  effect  had  the  remarks  of  Mr. 
Spencer  when  cursing  the  commander*  in 
the  boat  going  ashore  at  Mesurado  upon  the 
boat's  crew  ? 

A.  You  could  see  a  smile  on  their  faces. 

Q.  Do  you  know  anything  of  Mr.  Spen- 
cer's demeanor  to  his  commander  when  in 
his  presence,  or  when  addressing  him  ?  if 
so,  what  was  it  ? 

A.  He  was  very  obsequious,  and  very 
respectful ;  he  used  at  times  to  say  how  he 
would  address  -him  when  in  the  steerage, 
but  his  manner  when  he  got  on  deck  was 
different. 

Q.  Did,  or  did  not  Mr.  Spencer  pass  a 
large  portion  of  his  time  with  the  crew  ? 
and  was  he,  or  was  he  not  unusually  inti- 
mate and  familiar  in  his  conduct  toward 
them  ? 

A.  Yes,  sir;  he  spent  a  large  portion  of 
his  time  with  them  ;  he  seemed  to  keep 
aloof  from  his  brother  officers  altogether ; 
he  seemed  to  take  great  pleasure  in  the 
company  of  the  crew. 

Q.  Did  you,  or  did  you  not  observe 
with  which  of  the  crew  he  was  most  inti- 
mate ? 

A.  Yes,  sir  ;  with  Cromwell,  Small. 
Wilson,  M'Kinley,  Golderman,  Nevilles, 
M'Kee,  and  Waltham ;  he  was  very  intimate 


1  with  Waltham,  who  was  a  negro.  I  have 
i  seen  him  set  for  an  hour  at  a  time  on  the 
I  bitts  talking  with  this  negro.  Gallia,  too,  he 
I  was  very  intimate  with  ;  he  was  the  cook 
|  of  the  steerage,  a  Maltese  ;  he  used  to  lend 
I  Gallia  his  pipe  to  smoke. 

Q.  When  Midshipman  Rogers  gave  the 
|  order  about  the  brace,  which  was  not  obey- 
ed by  Mr.   Spencer  and   Cromwell,  were 
they  near  enough  to  have  heard  it  ? 

A.  They  were  as  nigh  as  I  was  ;  I  stood 
right  beside   them ;    I    heard   it   perfectly 
I  plain. 

I  Q.  At  what  time  of  the  day  were  Wilson, 
1  M'Kinley,  Green,  and  M'Kee,  ironed  ? 

A.  It  was  at  evening  quarters,  about  half- 
past  nine  o'clock,  or  thereabouts. 

Q.    Do    you  know   whether    M'Kinley, 
Green,  and  M'Kee,  came  aft  of  their  own 
accord,  or  were  sent  for,  just  before  they 
I  were  ironed  1 

A.  I  heard  Browning  saying,  if  they  did 
j  not  go  aft  and  make  a  report  of  the  matter, 
j  he  would. 

Q.  Do  you  know  anything  of  any  remarks 
!  of  Cromwell  about  the  commander's  fear  of 
i  exposing  the  boys  to  danger  ? 

,4.  Yes,  sir ;  a  short  time  after  we  left 

j  Mesurado,  we  were  struck  by  a  squall,  and 

some  of  the  little  boys   sprung  up  in  the, 

rigging  to  take  in  sail ;  the  commander  or- 

|  dered  some  of  the  smallest  down,  told  them 

not  to  go  up  ;  Cromwell  remarked  that  the 

i  commander  was  too  damned  afraid  of  the 

'  boys,  would  not  suffer  them  to  go  into  any 

!  danger. 

Q.  What  o'clock  was  it  when  we  got 
under  way  from  Madeira  ? 

A.  About  dark;  1  don't  recollect  what 
i  time  exactly. 

Q.  Was  anything  said  by  Mr.  Spencer, 
i  when  he  proposed  the  mutiny  to  you,  aboiu 
the  small  arms  being  loaded  ? 

A.  He  said  the  pistols  and  muskets  were 
loaded. 

Q.  Was  anything  said  on  the  same  occa- 
sion about  the  small  boys  ? 

A.  Yes,  sir  ;  he  said  the  small  fry  eat  a 
I  large  quantity  of  biscuit,  that  they  were  a 
useless  article  on  board  a  vessel,  and  that 
he  should  make  way  with  them. 

Q.  Do  you  know  anything  of  the  picture 
of  a  brig  drawn  by  Mr.  Spencer  ? 

A.  Yes,  sir;  he  drew  one  once,  and  brought 
it  into  the  wardroom ;  I  was  there  ;  heard 
the  purser  get  into  a  dispute  about  one  of 


PROCEEDINGS  OF  THE 


the  sails.  She  had  a  black  flag  flying  at 
her  peak. 

Q.  Do  you  know  anything  of  Mr.  Spen- 
cer's giving  segars  or  tobacco  to  any  of  the 
crew  ? 

A.  Yes,  sir ;  T  have  seen  him  give  tobac- 
co and  segars  to  a  number  of  them  ;  I  have 
seen  him  give  Cromwell  two  bunches  of 
segars  at  a  time  ;  I  have  s-een  him  give 
Van  Velsor  and  Green  (apprentices)  a  pound 
of  tobacco  at  a  time  ;  I  have  seen  him  give 
tobacco  and  segars  to  the  smaller  boys,  say- 
ing, when  he  gave  it  to  them,  that  "  he 
knew  it  was  contrary  to  the  rules  of  the 
vessel  to  give  it  to  them,  but  if  the  comman- 
der would  not  let  them  have  it,  he  would 
accommodate  them." 

Q.  Do  you  know  of  Mr.  Spencer  giving 
money  to  any  of  the  crewT,  other  than 
Cromwell  ?  if  so,  state  it. 

A.  Yes,  sir,  I  have  seen  him  give  money 
to  Small  at  Santa  Cruz — two  silver  pieces 
— I  do  not  know  how  much ;  I  have  seen 
him  throw  a  shilling  or  sixpence  on  the 
deck,  and  let  the  boys  scramble  for  it. 

Q.  What  do  you  know  of  the  conduct  and 
subordination  of  the  crew,  from  the  time  of 
our  departure  from  New  York  down  to  the 
time  of  execution  ? 

A.  The  conduct  of  the  crew  when  we 
left  New  York  was  very  good,  very  good 
discipline  indeed.  After  we  left  Madeira, 
I  noticed  they  were  disorderly,  and  the  dis- 
affection continued  to  increase  until  after 
the  execution  ? 

Q.  What  were  the  indications  of  subor- 
dination which  you  observed — were  the 
crew  respectful  and  prompt,  or  were  they 
•surly  and  reluctant  ? 

A.  They  were  surly  and  reluctant. 

Q.  What  portion  of  the  crew  were  surly, 
insubordinate,  backward  in  performance  of 
duty  down  to  the  time  of  the  execution  ? 

A.  About  half  or  two  thirds. 

Q.  Do  you  know  of  anything  that  passed 
when  Cromwell  and  Small  were  ironed, 
between  the  commander  and  them  ? 

A.  Cromwell  arid  Small  were  sitting  on 
the  trunk  when  the  irons  were  put  on.  I 
heard  the  commander  say  to  Cromwell, 
that  "  he  should  take  him  home,  and  that  he 
should  be  tried  by  the  laws  of  his  country  ; 
if  innocent,  he  could  prove  himself  so,  if 
guilty,  he  would  be  punished,"  or  words  to 
that  effect. 

Q.    Did    you   observe   the    commander 


speaking  to  Small,  immediately  after  he 
had  spoken  to  Cromwell  ? 

A.  Yes,  sir. 

Q.  From  your  observation  of  the  conduct 
and  demeanor  of  the  crew,  after  the  arrest 
of  the  persons  executed,  were  or  were  you 
not  of  the  opinion,  that,  if  the  execution  had 
not  taken  plaice,  a  rescue  would  have  been 
attempted  ? 

A.  I  think  they  would  have  attempted  a 
rescue.  I  do  not  think  the  vessel  could 
have  been  brought  into  port  by  her  officers, 
if  the  execution  had  not  taken  place. 

Q.  What  was  the  tone,  the  manner,  the 
demeanor,  the  appearance  of  Commander 
Mackenzie  in  his  intercourse  with  Mr. 
Spencer,  from  the  time  that  it  was  an- 
nounced to  him  that  he  was  to  die  until  the 
moment  of  his  death  ? 

A.  While  the  commander  was  talking  to 
him.  I  observed  the  tears  trickling  down  his 
(the  commander's)  cheeks  ;  it  appeared  to 
be  a  very  hard  duty  for  him  to  perform. 

Q.  Was  the  conduct  of  Commander  Mac- 
kenzie to  Mr.  Spencer  rude  or  sympathizing, 
disdainful  or  courteous  ? 

A.  Very  courteous,  very  sympathizing; 
I  thought  he  sympathized  with  him  deeply. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  When  did  you  first  suppose  it  to  be 
impossible  to  continue  Spencer,  Cromwell, 
and  Small,  aboard  with  safety  to  the  vessel  ? 

A.  The  third  day  after  Mr.  Spencer  was 
confined. 

Q.  At  what  hour  of  the  night  of  the  25th 
of  November  did  your  conversation  with 
Mr.  Spencer  commence,  and  how  long  did 
it  last ;  how  long  did  it  last  after  Small  was 
called  off? 

A .  It  commenced  a  little  after  six  o'clock ; 
Small  was  called  away  at  near  eight  o'clock, 
and  it  lasted  nearly  an  hour  after  Small  left. 

Q.  Had  you  any  previous  intimacy  with 
Mr.  Spencer  ?  had  he  made  you  presents 
of  money  or  anything  else  ? 

A.  He  never  made  me  any  presents ;  I 
was  as  intimate  with  him  as  with  any  of 
the  other  officers  ;  he  would  always  come 
to  me  when  he  wished  to  draw  anything. 

Q.  What  sort  of  a  man  was  Small  as  to 
intellect?  was  he  a  shrewd  or  a  simple  man? 

A.  Not  very  shrewd,  not  very  simple ; 
he  understood  navigation,  and  had  been 
mate  of  a  vessel. 

Q.  On  the  night  of  the  25th  of  Novem- 


NAVAL  COURT  MARTIAL. 


17 


her,  at  seven  o'clock  in  the  evening,  were 
you  in  the  steerage,  and  did  you  there  see 
Spencer  writing  in  a  strange  alphabet  on  a 
piece  of  paper,  and  did  you  hear  him  tell 
Midshipman  Tillotson  that  he  (Spencer) 
would  not  have  any  one  to  see  his  writing 
for  the  world  ? 

A.  No,  sir. 

Q.  Have  you  told  all  the  conversation 
that  passed  between  Small,  Spencer,  and 
yourself,  on  the  night  of  25th  November  ? 

A.  All  that  I  recollect  of. 

Q.  Have  you  any  reason  to  believe  that 
Spencer  had  not  on  that  night,  for  the  first 
time,  broached  to  Small  any  scheme  of  the 
kind  you  have  described,  as  well  as  to 
yourself? 

A.  I  believed  he  had  broached  it  before 
to  him ;  I  judged  so  from  Small's  actions 
-and  manner. 

Q.  You  say  that  Spencer  did  not  com- 
mence the  conversation  with  any  crafty  in- 
quiries as  to  the  state  of  your  feelings,  as 
to  the  commander  and  officers,  and  to  sound 
you  as  to  how  you  would  like  the  life  of  a 
pirate  ;  but  you  say  that  he  merely  adminis- 
tered to  you  an  oath  of  secresy  after  asking 
you  the  catechism  as  to  your  courage,  and 
at  once  bluntly  told  you  a  formed  scheme 
of  his  own ;  now,  sir,  had  you  never  in- 
dulged in  any  mutinous  conversation  before  ? 

A.  No  sir  ;  not  with  him,  nor  with  any 
one  else. 

The  Court  was  cleared  to  consider  the 
admissibility  of  a  question  of  the  Judge 
Advocate  :  on  opening  it,  it  was  decided  it 
should  be  changed  to  the  following  form  : 

Q.  Assuming  Spencer  to  have  been  in 
jest,  what  would  have  been  your  predica- 
ment, Mr.  Wales,  had  Small,  when  called 
off  from  the  conversation,  divulged  what 
was  going  on  on  the  booms  to  an  officer  ? 

A.  I  don't  know  what  it  would  have 
been. 

Q.  You  have  spoken  of  a  written  scheme 
Mr.  Spencer  had;  did  you  see  it  ?  can  you 
produce  it  ? 

A.  I  did  not  see  it  that  night ;  Mr.  Spen- 
cer told  me  he  had  a  plan  of  his  plot  and 
the  stations  of  his  men  in  his  neck-hand- 
kerchief. I  saw  it  taken  out  of  his  locker 
subsequently. 

Q.  You  say  you  did  not  see  it  that  night, 
but  afterward  saw  it  taken  out  of  his  loc- 
ker ;  now,  how  do  you  know  that  the  one 
taken  out  of  his  locker  was  the  one  in  the 
3 


neck-handkerchief  on  the  night  of  the  25th 
of  November  ? 

A.  To  the  best  of  my  knowledge  and 
belief  it  is. 

Q.  Did  you  see  it  on  the  night  of  the 
25th  November  ?  and  if  you  did  not,  how 
can  you  have  any  knowledge  or  belief  on 
the  subject  ? 

A.  From  what  Mr.  Spencer  said  of  his 
having  such  a  paper  and  promising  to  show- 
it  to  me  on  the  morrow. 

Q.  Did  he  tell  you  that  the  one  he  would 
show  you  was  in  his  locker  ? 

A.  No,  sir. 

Q.  Have  you  any  other  reason,  then,  for 
believing  the  one  in  the  handkerchief  to 
have  been  the  same  afterward  taken  from 
the  locker,  except  the  fact  that  Spencer  told 
you  he  had  a  plan  with  the  names  and  sta- 
tions of  his  accomplices  set  down  ? 

A.  I  have  no  other  reason  for  believing  so. 

Q.  If  your  name  had  been  found  on  any 
scheme  of  Spencer's,  put  there  before  his 
conversation  with  you  on  the  night  of  the 
25th  of  November,  how  would  you  account 
for  it  ? 

A.  It  would  have  been  put  down  without 
my  knowledge. 

Q.  Did  he  tell  you  your  name  was  put 
down  in  that  place  ? 

A.  No,  sir,  he  did  not. 

Q.  You  say  Mr.  Spencer  told  you  he  had 
a  plan  in  which  all  the  men  were  stationed 
and  assorted  for  their  mutinous  duties,  and 
you  say  that  he  stated  his  associates  were 
about  twenty ;  had  you  been  in  any  such 
association  with  him  before  that  evening  ? 

A.  No,  sir. 

Q.  What  was  the  complement  or  force 
of  the  Somers  ? 

A.  One  hundred  and  twenty,  all  told, 
officers  and  all,  two  thirds  boys. 

Q.  You  say,  that,  with  a  view  to  pene- 
trate deeper  his  designs,  you  told  him  you 
liked  the  plans,  and  you  agreed  betweea 
you  that  another  interview  should  occur  on 
the  morrow  ;  did  you  so  express  yourself  as 
to  seem  to  get  his  confidence  ? 

A.  Yes,  sir. 

Q.  Did  he  tell  you  the  names  of  any  of 
these  your  future  associates,  and  of  whom 
you  were  to  be  third  officer  1  did  you  ask 
him  for  their  names  ? 

A.  No.  sir. 

Q.  Did  you  tell  him  he  was  taking  a 
large  job  on  hand  with  twenty  men  ? 


18 


PROCEEDINGS  OF  THE 


A.  I  did  not. 

-  Q.  When  Mr.  Spencer  told  you  he  in- 
tended to  make  a  scuffle  some  night  when 
he  had  the  mid-watch,  run  with  his  asso- 
ciates to  the  main-mast,  call  Mr.  Rogers, 
and  throw  him  overboard,  did  you  tell  him 
that  it  would  be  likely  to  rouse  the  men, 
and  prevent  him  from  going  on  with  his 
plan — which  he  told  you  was  to  open  the 
arm  chest  and  distribute  them  to  the  men, 
and  station  the  men  nt  the  hatches,  and 
proceed  in  person  to  th6  cabin  to  murder 
the  commander,  and  the  officers  in  the  ward- 
room and  steerage,  and  of  slewing  the  two 
after  guns  round  so  as  to  rake,  the  deck, 
and  to  call  up  the  crew,  to  select  those  to 
be  thrown  overboard — considering  he  had  but 
twenty  associates,  in  a  crew  of  one  hundred 
and  twenty  men  and  boys  ? 

Objection  having  been  made  by  the  ac- 
cused to  this  question,  the  Court  was  cleared. 

On  opening  it  Commander  Mackenzie 
was  informed  that  the  question  should  go 
on  the  record  and  that  any  objection  he  had 
to  make  should  be  received  to-morrow. 

The  testimony  of  J.  W.  Wales  was  here 
Suspended,  his  evidence  was  then  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
10 w,  Feb.  8,  at  10  o'clock,  A.M. 


U.  S.  SHIP  NORTH  CAROLINA,  ) 
New  York,  Feb.  8,  1843.       J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat.  Oom'dr  Ogden, 

"       Smith,  "       Shubrick, 

"       Storer,  Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused.  The  journal  of  the 
preceding  day  was  read  and  approved. 
"  Commander  Mackenzie  submitted  the  fol- 
lowing paper,  which  was  read  by  his  coun- 
sel : — 

"  The  counsel  for  the  accused  respectfully 
states  to  the  Court  that  the  following  ques- 
tion was  yesterday  offered  by  the  Judge 
Advocate  to  the  witness  J.  W.  Wales,  on 
Iris  cross  examination  :  '  When  Mr.  Spen- 
der told  you  he  intended  to  make  a  scuffle 


some  night  when  he  had  the  mid-watch, 
run  with  his  associates  to  the  mam  mast, 
call  Mr.  Rogers  and  throw  him  overboard, 
did  you  tell  him  that  it  would  be  likely  to 
arouse  the  men  and  prevent  him  from  going 
on  with  his  plan — which  he  told  you  was  to 
open  the  arm-chest  and  distribute  them  to 
the  men,  and  to  station  men  at  the  hatches, 
and  proceed  in  person  to  the  cabin  and 
murder  the  commander,  and  the  officers  in 
the  wardroom  and  steerage,  and  slewing  the 
two  after  guns  around  so  as  to  rake  the 
deck,  to  call  up  the  crew,  to  select  those  to 
be  thrown  overboard — considering  he  had 
but  twenty  associates,  in  a  crew  of  one 
hundred  and  twenty  men  and  boys  ?' 

"  To  this  question  the  counsel  for  the  ac- 
cused objected,  and  in  compliance  with  the 
expressed  wishes  of  the  court,  he  now  re- 
news his  protest  against  its  admission  in  a 
form  that  may  entitle  his  objections  to  be 
placed  on  the  records  of  the  court. 

"  The  counsel  protests  against  the  admis- 
sion of  this  question  on  the  following  grounds  : 
It  is  a  question  merely  in  form,  but  in  reality 
and  intent  an  argument,  brief  it  is  true,  but 
doubtless  to  be  followed  by  others  of  a  simi- 
lar tenor.  Its  real  design  is  not  consistent 
with  any  purpose  for  which  a  cross-exam- 
ination is  allowed.  Its  object  is  not  to  eli- 
cit any  fact  material  to  the  case,  but  to  pre- 
judice the  defence  of  the  accused,  and  to 
entrap  the  witness,  and  finally,  under  the 
]  precedent  of  its  admission,  should  the  ques- 
tion be  received,  the  discretion  of  the  judge 
advocate  in  the  cross-examination  of  wit- 
nesses will  be  unlimited. 

"  The  counsel  for  the  accused  is  fully  aware 

that  a  great  latitude  is  allowed  in  the  cross- 

!  examination  of  witnesses,  and  he  has  no 

]  disposition  to  abridge,  on  the  present  pcca- 

j  sion,  the   exercise  of  this  privileged  free- 

|  dom  ;  but  the  freedom  of  cross-examination 

has  certain  limits ;   it  is  subject  to  certain 

rules,  and  the  observance  of  these  rules  is 

« indispensable  to  prevent  a  privilege  thatt 

I  duly  restrained,  is  invaluable    from   being 

j  converted  by  its   abuse   into   a   dangerous 

I  license. 

';  The  interests  of  truth  and  justice  require 
that  counsel  on  the  cross-examination  of 
witnesses  should  be  released  from  many  of 
the  rules  of  evidence,  but  the  same  interests 
equally  require  that  some  rules  should  be 
rigidly  enforced.  Thus,  a  counsel  is  not 
permitted,  in  cross-examining  a  witness,  to 


NAVAL  COURT  MARTIAL. 


19 


assume  that  facts  have  been  proved,  of  which 
no  evidence  has  been  given,  or  to  impute  to 
the  witness  language  and  expressions  that 
he  had  never  used  :  such  questions  the  law 
condemns,  as  insidious  and  ensnaring  ;  their 
object  is  to  entrap  the  witness  into  the  ad- 
mission of  a  fact  which,  had  it  been  made 
the  subject  of  direct  inquiry,  would  certainly 
have  been  denied — their  object  is  to  force 
upon  this  testimony  a  construction  he  never 
intended  it  should  bear.  But  these  are  not 
the  only  restrictions  to  which  a  cross-exam- 
ination is  liable  :  there  is  another  limitation, 
arising  from  the  very  nature  of  the  subject. 
There  are  certain  purposes  for  which  a 
cross-examination  is  allowed,  and  with  these 
its  legitimate  object,  every  question  that  is 
put  to  the  witness  must  be  consistent.  The 
only  legitimate  object  of  a  question  on  such 
an  examination  is  either  to  obtain  testimony 
of  additional  facts,  or  to  obtain  an  answer 
that  may  discredit  the  witness.  If  a  ques- 
tion neither  seeks  information  from  a  wit- 
ness, nor  seeks  to  discredit  him,  it  must  be 
wholly  irrelevant,  and  may  be  liable  to  a 
much  graver  charge  than  that  of  mere  irrele- 
vancy. A  counsel  has  no  right,  under  pre- 
text of  examining  a  witness,  to  insinuate 
his  own  views  of  the  merits  and  justice  of 
a  case  ;  he  has  no  right,  at  the  outset  of  an 
investigation,  to  prejudice  or  attempt  to  pre- 
judice the  minds  of  the  court  and  of  the 
public  by  an  indirect  argument,  to  which, 
from  its  very  form,  the  accused  has  no  op- 
portunity of  immediate  reply,  no  opporrunity 
of  replying  until  the  close  of  a  protracted 
trial,  when  the  impression  made  may  have 
been  indelible.  When  such  attempts  are 
made  in  a  court  of  civil  jurisdiction,  they 
are  invariably  overruled  and  rebuked. 

"  It  is  with  great  and  sincere  regret  that 
I  proceed  to  apply  these  remarks  to  the 
question  to  which  I  object ;  but  I  am  com- 
pelled to  ask,  is  it  the  object  of  the  question 
either  to  obtain  proof  of  additional  facts  or 
to  discredit  the  witness,  and  am  compelled 
to  answer,  neither.  Does  the  judge  advo- 
cate expect  to  prove  that  the  witness  held 
the  conversation  with  Mr.  Spencer  that  the 
question  states  ?  that  he  remonstrated  with 
him  (Mr.  Spencer)  on  the  absurdity  of  the 
plan  and  the  impossibility  of  its  execution  ? 
No,  certainly  not.  The  judge  advocate 
knows  that  no  such  a  reply  will  be  given, 
for  the  witness  has  already  sworn  that,  far- 
from  remonstrating  with  Mr,  Spencer,  he 


assented  to  the  plan,  and  nearly  agreed  to 
share  in  its  execution.  An  affirmative  reply 
is  not  expected  ;  it  is  known  that  it  will  not 
be  given,  and  consequently  the  question  is 
not  put  for  information.  The  judge  advo- 
cate knows  that  the  only  reply  that  can  or 
will  be  given  is  a  direct  negative  ;  and  what 
|  is  the  effect  of  that  negative  ?  To  discredit 
|  the  witness  ?  If  so,  he  is  already  past  re- 
demption discredited  ;  he  has  already  nega- 
tived the  question  ;  he  has  sworn  in  the 
most  positive  manner  that  he  held  no  such 
conversation  with  Mr.  Spencer  as  the  ques- 
tion calls  him  to  relate  ;  he  has  sworn  that 
he  believed  the  plan  of  Mr.  Spencer  to  be 
serious,  and  its  execution  not  merely  possi- 
ble but  probable.  With  a  view  to  the  dis- 
credit of  the  witness,  if  the  supposed  im- 
probability of  the  plan,  or  of  his  own  story, 
can  discredit  him,  the  question  is  utterly  and 
manifestly  useless.  If  the  object,  then,  of 
the  question  is  neither  information  nor  im- 
peachment of  the  witness,  what  is  its  true 
character  ?  It  is  a  brief  argument,  designed 
to  show  that  the  plan  of  a  mutiny,  as  related 
j  by  the  witness,  was  so  absurd  and  imprac- 
ticable, that  either  it  was  not  seriously  en- 
tertained by  Mr.  Spencer,  or  was  not  com- 
municated by  him  to  Wales.  It  is  not  a 
question  to  the  witness  ;  the  pretext  crum- 
bles at  the  touch.  It  is  an  insidious  and 
most  irregular  comment  on  the  testimony 
|  that  the  witness  had  before  given.  As  au 
argument,  the  question  is  exceedingly  harm- 
less, but  as  a  precedent  it  is  significant  and 
dangerous.  Should  it  be  said  that  the  ob- 
ject of  the  question  is  to  ascertain  whether 
the  witness  himself  believed  that  the  exe- 
!  cution  of  the  plan  was  possible,  let  it  be 
'  divested  of  a  form  that  conceals  its  purpose 
and  renders  it.  a  trap  to  the  witness  ;  strike 
out  the  argument  and  the  verbiage,  and  put 
the  question  in  plain  words,  whether  he  be- 
lieved the  plan  could  be  executed,  and  why 
he  believed  so  ?  If  the  object  of  the  ques- 
tion be  legitimate,  that  is  its  honest  form.  l 
"  Finally,  if  the  court  receive  the  ques- 
tion in  its  present  form,  the  desire  so  plainly 
expressed  by  the  judge  advocate  at  the  com- 
mencement of  this  trial,  of  being  wholly  re- 
leased from  the  rules  of  evidence,  will  be 
fully  accomplished,  there  will  be  no  limits 
to  his  discretion — no  question  that  can  be 
rejected  as  improper. 

"  If  a  portion  of  an  argument  may  be 
presented  in  a  question,  why  not  an  entire 


20 


PROCEEDINGS  OF  THE 


argument,  embracing  an  examination  of  the 
whole  case,  endeavoring  to  show  that  none 
of  the  persons  accused  were  guilty,  or  if 
guilty,  that  their  execution  was  unneces- 
sary ;  nothing  would  be  more  easy  than  to 
suggest  the  form  of  a  question  in  which  the 
whole  argument  might  be  incorporated. 

"  That  such  an  attempt  will  be  made,  is 
not  apprehended :  the  design  would  be  too 
palpable — the  attack  upon  the  patience  of 
the  court  too  violent.  But  an  elaborate  ar- 
gument may  be  easily  divided  into  a  series 
of  artful  insinuations,  suppositions,  and  sur- 
mises, in  the  form  of  questions,  and  thus  in- 
sidiously disguised,  may  produce  a  false 
and  mischievous  impression,  that,  if  exhib- 
ited in  its  proper  shape,  it  could  never  have 
effected.  Two  such  questions  have  already 
been  offered  :  how  many  more  are  in  the 
possession  of  the  judge  advocate,  or  in  the 
process  of  preparation  for  future  use,  is  yet 
unknown. 

"  It  will  not  be  supposed  by  a  single 
member  of  this  court,  that  the  accused  or 
his  counsel  desire  that  his  conduct  should 
be  shielded  from  the  most  rigid  scrutiny. 
That  scrutiny  he  has  sought  arid  demanded, 
but  he  demands  also  that  it  be  conducted  in 
an  open,  honorable,  and  legal  manner.  In 
requiring  this,  he  feels  that  he  is  acting,  not 
merely  in  defence  of  his  own  rights,  but  of 
the  rights  of  every  brother  officer  who,  from 
misfortune,  accident,  or  malice,  may  be  placed 
in  a  situation  similar  to  his  own. 

"J.   W.   DUER." 

The  court  was  then  cleared. 

The  objections  of  the  counsel  of  the  ac- 
cused being  read,  the  court  was  cleared  for 
consideration.  Upon  the  opening  of  the 
court,  the  judge  advocate  announced  that 
the  court  had  decided  that  the  paper  of  the 
accused  be  put  on  record,  and  that  the  ques- 
tion should  hot  be  put  in  its  existing  form. 
"Whereupon  tlio  judge  advocate  road  his 
opinion,  given  in  behalf  of  the  admissibility 
of  the  question,  and  desired  it  should  be 
made  a  matter  of  record,  which  the  court 
allowed. 

"  The  judge  advocate  was  of  opinion  that 
the  question  was  entirely  legal,  he  having 
no  right  to  assume  the  truthfulness  of  the 
witness  in  his  present  statement,  and  being 
at  liberty  to  recall,  by  an  enumeration  to  the 
witness  all  the  difficulty  of  the  scheme,  the 
unlikelihood  either  that  Spencer  told  him 


the  details  at  all,  or  that  conversation  en- 
sued between  them  which  would  show  that 
the  organization  was  incomplete,  and  that 
the  mutiny,  if  existing  at  all,  was  stated  as 
not  intended  to  take  place  until  such  further 
acquisition  of  accomplices  might  be  made 
as  would  enable  the  scheme  to  be  possible  ; 
for  the  witness  has  sworn  that  the  mutiny 
was  to  break  out  before  the  arrival  at  St. 
Thomas,  and  of  course  it  is  highly  impor- 
tant to  ascertain  whether  the  mutiny  was 
immature  or  not. 

"  Besides,  the  court  can  not  know  but 
that  a  witness  may  be  called  to  prove  the 
very  conversation  inquired  of  did  take  place ; 
and  the  non-existence,  in  point  of  fact,  of 
any  such  witness  can  not  effect  the  validity 
of  the  question  on  principle  ;  and  conceiving 
that  an  entire  right  would  exist  to  ask  the 
question  generally,  whether  the  witness 
explained  to  Spencer  that  the  mutiny  was 
not  practicable,  it  is  optional  with  the  judge 
advocate  to  enumerate  the  circumstances 
of  difficulty  in  his  question :  he  may  have 
good  reasons  for  preferring  one  course  to 
the  other. 

"  WILLIAM  H.  NORRIS, 

" Judge  Advocate" 

J.  W.  Wales  recalled. 

The  judge  advocate  then  put  the  follow- 
ing question : 

Q.  Charge  your  memory  particularly,  and 
say,  have  you  or  have  you  not  had  farther 
conversation  with  Mr.  Spencer  than  what 
you  have  stated  on  the  subject  of  the  pre- 
sumed or  apprehended  mutiny,  and  whether 
you  discouraged  the  attempt  or  not,  or  pre- 
sented to  his  mind  any  impracticability  of 
executing  the  plan ;  the  insufficiency  of 
numbers ;  or  any  other,  if  any,  and  what 
difficulties  ? 

A.  No,  sir. 

Q.  How  many  persons  would  regularly 
be  on  duty  at  mid- watch?  and  how  are  they 
selected  from  the  crew,  so  many  out  of  one 
division,  and  so  many  out  of  another  ?  ex- 
plain the  discipline  of  the  brig  as  to  that 
particular. 

A.  I  don't  know  much  about  it,  I  am  no 
sailor  ;  I  should  judge  about  half  of  the 
ship's  company. 

Q.  Did  Mr.  Spencer  give  you  any  expla- 
nation how  he  was  to  contrive  to  get  his 
twenty  men  to  be  on  deck  at  mid-watch,  so 
as  not  to  expose  them  to  the  resistance  and 


NAVAL  COURT  MARTIAL. 


21 


outcries  of  such  others  as  were  on  duty, 
not  in  the  scheme  ? 

A.  He  told  me  he  was  leagued  with 
twenty  men,  he  did  not  specify  who. 

Q.  When  did  you  first  swear  that  Mr. 
Spencer  told  you  the  mutiny  "  was  to  break 
out  shortly  before  '  your  arrival  at  St. 
Thomas  ?" 

^4.  At  the  examination  of  officers  and 
men  by  the  officers,  I  forget  what  day ;  I 
think  it  was  on  the  30th  November. 

Q.  Did  you  hear  him  offer  to  make  Mid- 
shipman Rogers  a  bet,  before  the  25th  No- 
vember, that  the  Somers  would  be  in  St. 
Thomas  in  eight  days  ? 

A.  No,  sir. 

Q.  You  say  Mr.  Spencer  told  you  the 
mutiny  was  to  break  out  at  mid-watch ;  he 
would  call  Mr.  Rogers,  the  officer  of  the 
deck,  and  throw  him  overboard  :  you  fur- 
ther say  that  on  the  night  of  the  25th  No- 
vember, when  Small  was  called  off,  that 
Mr.  Spencer  told  him  that  he  (Mr.  Spencer) 
had  the  mid-watch  that  night,  when  he 
would  continue  the  conversation  with  Small : 
when  next  after  that  night,  in  the  regular 
course  of  duty,  would  Mr.  Spencer  have 
been  on  the  mid-watch  with  Mr.  Rogers  as 
officer  of  the  deck  ? 

A.  I  don't  know  ;  I  know  nothing  about 
the  watches ;  I  had  nothing  to  do  with 
them. 

Q.  You  have  sworn  that  at  the  close  of 
the  conversation  on  the  night  of  25th  No- 
vember, you  and  Mr.  Spencer  agreed  to 
have  another  interview  on  the  morrow, 
when  he  would  show  you  a  plan  he  had 
drawn  up ;  did  you  not  swear  before  the 
council  of  officers,  that  he  said  he  would 
show  you  the  plan  at  some  future  period  ? 

A.  I  do  not  recollect  swearing  that  before 
the  council  of  officers ;  I  might  have  done 
so,  however  ;  when  I  left  Mr.  Spencer  on 
the  night  of  the  25th  of  November,  he  re- 
marked "  that  we  would  have  an  interview 
on  the  morrow." 

Q.  If  you  did  swear  before  the  council 
of  officers  that  Mr.  Spencer  told  you  he 
would  show  you  his  plan  at  some  future 
period,  why  do  you  now  say  he  told  you  he 
would  show  it  to  you  on  the  morrow  ? 

A.  Why,  the  morrow  would  be  a  future 
period  from  the  time  I  held  the  conversa- 
tion with  him. 

Q.  Did  he  not  tell  you  he  would  have  an 
interview  with  you  to-morrow,  but  that  he 


would  show  you  his  plan  at  some  future 
period  ? 

A.  No,  sir ;  he  told  me  we  would  have 
an  interview,  and  that  he  would  then  show 
me  his  plan. 

Q.  What  were  the  names  of  the  fore- 
topmen  ? 

A.  I  don't  know,  the  watch  and  station 
book  will  show  it. 

Q.  When  Mr.  Spencer  told  Small  to  be 
sure  to  see  that  foretopman,  was  there  any- 
thing to  show  that  it  was  not  with  a  view 
of  ascertaining  whether  that  foretopman 
would  join  you  in  the  intended  mutiny  ? 

A.  I  don't  know  ;  I  suppose  they  had 
had  some  conversation  before :  I  inferred 
so  from  his  saying,  "  See  that  foretop- 
man." 

Q.  I  mean  to  ask,  was  there  anything 
but  the  mere  words  to  convey  the  idea  of 
a  previous  understanding  with  that  fore- 
topman ? 

A.  Nothing  to  my  knowledge. 

Q.  Did  you  not  know  at  the  time  of  the 
conversation  that  the  brig  was  not  very 
many  days  off  from  St.  Thomas,  taking  the 
average  chance  of  weather  ? 

A.  I  did  not  know  how  many  days  off 
we  were  ;  I  did  not  know  what  kind  of 
weather  we  might  have  ;  we  might  have 
got  in  in  ten  days,  and  then  again  not  in 
three  weeks. 

Q.  Did  Mr.  Spencer  tell  you  what  was 
to  be  your  share  of  duty  in  the  execution 
of  the  scheme  ? 

A.  No,  sir,  further  than  promising  me  the 
situation  of  third  officer — he  offered  me  the 
post  of  third  officer  ;  he  specified  nothing 
for  me  to  do  in  the  execution  of  the  scheme. 

Q.  Was  not  the  testimony  you  gave  be- 
fore the  council  of  officers  copied  off  by 
you,  and  several  corrections  made  in  it 
several  days  after  it  was  first  given  ? 

A.  It  was  copied  off;  I  don't  recollect 
about  the  corrections  ;  I  don't  know  that  I 
copied  it  off :  I  don't  think  I  did. 

Q.  Did  you  see  and  read  it  some  days 
after  it  was  given,  and  were  you  not  told 
before  the  execution  that  you  might  make 
corrections,  if  any  were  needed,  in  your 
testimony ?  , 

A.  I  saw  it,  but  don't  recollect  having 
been  told  I  might  make  corrections. 

Q.  Did  Mr.  Spencer,  on  the  26th  No- 
vember, seek  an  interview  with  you  ? 

A.  No,  sir ;  he  was  engaged  with  Green, 


22 


PROCEEDINGS  OF  THE 


a  forecastle  man,  in  the  foretop  nearly  the 
whole  morning. 

Q.  You  say  that  on  the  night  of  the  25th 
November,  after  your  conversation  with  Mr. 
Spencer,  as  you  were  trying  to  get  into  the 
ward-room  to  disclose  the  scheme,  he  sa- 
luted you  with  the  exclamation,  "  What  the 
devil  are  you  about,  cruising  around  there  ?" 
Who  were  in  the  steerage  with  Mr.  Spen- 
cer at  that  time  ? 

A.  I  don't  know  what  midshipman  ;  Mr. 
Rogers,  I  think,  was  there,  and  all  the  mid- 
shipmen with  the  exception  of  the  two  on 
duty ;  they  were  turned  in  and  the  lights 
out. 

Q.  Did  you  swear  to  this  exclamation 
before  the  council  of  officers  ?  when  did 
you  first  tell  it,  and  to  whom  ? 

A.  I  don't  recollect  whether  I  swore  it 
or  not ;  I  don't  recollect  whether  I  told  it 
or  not. 

Q.  Did  you  tell  it  to  any  one  before  the 
execution,  and  to  whom  ? 

A.  I  say  I  don't  recollect. 

Q.  WTas  not  this  exclamation  a  strong 
circumstance  to  show  you  were  watched  by 
Mr.  Spencer;  and, if  so,  how  is  it  you  can't' 
recollect  whether  you  told  it  at  all  before 
the  execution  ? 

A.  I  can't  recollect ;  I  don't  know  why. 

Q.  Can  you  say  whether  you  told  it  at 
all  to  Commander  Mackenzie  or  Lieutenant 
Gansevoort  before  the  execution  ? 

A.  I  can't  say ;  I  don't  recollect. 

Q.  You  say  you  told  Mr.  Spencer  you 
liked  the  plan,  and  was  favorably  disposed 
to  it ;  did  you  not  swear  before  the  council 
of  officers  that  you  did  not  tell  him  whether 
you  would  or  would  not  join  him,  but  rather 
leaned  to  his  side  ? 

A.  I  don't  recollect ;  I  recollect  telling 
Mr,  Spencer  that  I  was  favorably  disposed 
toward  them. 

Q.  What  did  you  mean  we  should  under- 
stand by  stating  the  change  of  manner  of 
Cromwell  to  the  boys,  in  the  course  of  the 
cruise  ? 

A.  I  should  judge  he  meant  to  bring  as 
many  over  as  he  possibly  could,  to  get  the 
good  will  of  the  boys. 

Q.  Was  it  not  a  part  of  Mr.  Spencer's 
plan  to  throw  the  smaller  boys  overboard  as 
useless  consumers  of  biscuit  ? 

A.  That  is  what  he  said  he  would  do. 

Q.  You  say  that  Cromwell  at  first  was 
tyrannical  and  severe  to  the  boys,  for  which 


Commander  Mackenzie  reproved  him  ;  that 
afterward  he  seemed  to  grow  fond  of  the 
boys  and  allowed  them  many  playful  liber- 
ties :  can  you  undertake  to  say  that  this 
change  did  not  flow  from  the  reprimands 
of  Commander  Mackenzie  ? 

A.  I  can't  say  what  it  flowed  from ; 
Commander  Mackenzie  would  never  suffer 
the  boys  to  curse  a  person,  and  I  have  heard 
the  boys  curse  Cromwell,  and  he  would 
never  pay  any  attention  to  it ;  but  before 
our  arrival  at  Madeira  he  would  bring  them 
up  for  the  most  trivial  offences  and  have 
them  punished. 

Q.  Was  the  change  of  manner  of  Crom- 
well to  the  boys  subsequent  to  the  reproofs 
of  Commander  Mackenzie  ? 

A.  Yes,  sir,  it  was. 

Q.  When  did  Mr.  Spencer  give  Cromwell 
the  $15? 

A.  Shortly  after  we  left  New  York;  I 
don't  recollect  the  exact  time,  but  two  or 
three  days. 

Q.  How  long  were  you  from  New  York 
to  Madeira  ? 

A.  Upward  of  twenty  days,  I  believe. 

Q.  Do  you  say  Cromwell  continued  se- 
vere to  the  boys  till  you  left  Madeira,  and 
that  after  that  the  change  began  ? 

A.  I  do,  sir. 

Q.  You  say  in  your  testimony  that  when 
on  the  morning  of  the  26th  Nov.  you  were 
telling  Lieut.  Gansevoort  that  the  purser 
wished  to  see  him,  that  Cromwell,  Small, 
Wilson,  and  M'Kinley,  gathered  round  you 
as  though  anxious  to  hear  your  conversa- 
tion ;  did  not  you  swear  before  the  court  of 
inquiry  that  you  were  watched  very  nar- 
rowly by  Mr. Spencer,  Cromwell,  and  Small, 
and  by  Wilson  and  M'Kinley,  and  that  you 
saw  them  talking  together  as  you  passed 
by? 

A.  I  swore  that  I  did  see  them,  and  may 
have  omitted  to  swear  before  the  court  of 
inquiry  to  this  circumstance. 

Q.  Did  you  state  this  suspicious  circum- 
stance before  the  council  of  officers  ? 

A.  I  don't  recollect. 

Q.  Did  you  state  it  to  any  one  before  the 
execution,  and  if  so  to  whom  ? 

A.  I  won't  be  sure,  but  think  I  stated  it 
to  Lieut.  Gansevoort  before  the  execution. 

Q.  Was  Cromwell  in  the  mid-watch  with 
Mr.  Spencer,  of  the  night  of  the  25th  Nov. 
according  to  the  discipline  of  the  brig  \ 

A.  I  don't  know  ;  I  believe  he  was. 


NAVAL  COURT  MARTIAL. 


23 


Q.  You  have  spoken  of  the  picture  of  the 
brig  with  a  black  flag,  in  your  testimony 
before  the  court  of  inquiry  ;  did  you  not  de- 
scribe it  a  picture  of  the  brig  Somers  ? 

A.  I  doti't  recollect ;  I  recollect  the  brig, 
but  do  not  recollect  describing  it  before  the 
court  of  inquiry. 

Q.  In  what  colors  was  the  brig  drawn  1 

A.  In  lead  and  ink  both. 

Q.  Was  not  the  flag  colored  with  the 
same  material  as  the  body  of  the  picture  ? 

A.  No,  sir,  it  was  colored  with  ink. 

Q.  Do  you  know  why  the  picture  was 
drawn,  and  was  there  any  device  on  the 
frag? 

A.  I  cant  say;  the  flag  I  believe  to  be 
plain  black.  » 

Q.  You  spoke  of  Mr.  Spencer's  distribu- 
ting segars  and  tobacco  to  the  smaller  boys  ; 
what  do  you  mean  we  should  understand  by 
this  information  ? 

A.  To  furnish  them  tobacco  contrary  to 
the  rules  of  the  vessel ;  the  commander  had 
given  orders  they  should  use  none. 

Q.  Did  you  mean  to  imply  that  it  was 
with  a  view  to  get  accomplices  for  a  mu- 
tiny ? 

A.  I  don't  know  what  it  was  for  ;  I  pre- 
sume it  was,  but  don't  know. 

Q.  If  it  was  Mr.  Spencer's  plan  to  throw 
the  boys  overboard,  how  can  you  so  pre- 
sume ? 

A.  I  don't  know  what  it  was  for. 

Q.  Why  did  you  state  about  Mr.  Spen- 
cer's having  made  a  scramble  for  a  sixpence 
ar  shilling  ?  did  you  regard  that  as  an  act  of 
solicitation  to  mutiny  or  to  gain  accom- 
plices ? 

A.  I  said  he  threw  the  money  on  the 
deck  for  the  boys  ;  I  was  asked  if  I  had  seen 
him  give  money  to  others  besides  Cromwell 
and  Small,  and  made  that  reply — I  don't 
know  why  he  gave  it  to  them. 

Q.  Do  you  know  of  any  reason  why  Mr. 
Spencer  should  not  have  been  intimate  with 
the  officers  of  the  brig  Somers  ? 

A.  No  sir,  I  do  not. 

Q.  You  have  spoken  of  the  knots  of  per- 
sons who  would  gather  about  the  ship,  at 
the  arrest  of  Mr.  Spencer  and  others  ;  what 
number  of  persons  would  form  these  groups  ? 

A.  Five  or  six,  sometimes  more,  not 
more  than  one  group  at  a  time. 

Q.  When  did  Commander  Mackenzie 
first  inform  the  crew  of  the  projected  mu- 
tiny? 


A.  I  believe  after  the  arrest  of  Cromwell 
and  Small. 

Q.  What  was  the  manner  and  appear- 
ance of  the  crew  when  Commander  Mac- 
kenzie first  announced  to  them  the  projected 
mutiny  and  its  intended  consequences  ? 

A.  I  was  not  on  deck  at  the  time. 

Q.  Do  you  regard  it  as  a  mutinous  indi- 
cation that  such  assemblages  should  occur 
after  the  arrest  and  ironing  of  an  officer, 
and  before  the  cause  of  it  was  explained  to 
the  crew? 

A.  I  do  ;  it  wras  in  a  secret  way,  and  they 
would  separate  when  an  officer  approached 
them. 

Q.  Was  Mr.  Spencer  a  favorite  with  the 
crew  ? 

A.  Yes,  sir,  he  appeared  to  be  so. 

Q.  Do  you  think  it  a  mutinous  indication 
that  being  so,  crews  should  gather  in  knots 
and  talk  as  to  the  cause  of  his  confinement, 
not  having  had  the  cause  explained,  and 
seem  dissatisfied? 

A.  I  don't  see  why  they  should  be  secret 
about  it,  and  separate  when  an  officer  ap- 
proached them,  and  go  to  another  part  of 
the  vessel,  and  still  continue  to  converse  in 
a  low  tone  of  voice. 

Q.  Is  it  the  habit  of  naval  seamen  to 
be  heard  by  officers  discussing  such  mat- 
ters ? 

A.  I  don't  know. 

Q.  Did  you  have  any  difficulty  with 
Commander  Mackenzie  at  Porto  Rico,  and 
what  was  it  ? 

A.  I  had  a  difficulty,  but  decline  explain- 
ing it. 

Q.  You  say  you  observed  some  of  the 
crew  making  signs  to  Cromwell,  upon  which 
he  raised  himself  from  the  arm-chest,  and 
you  told  him  if  he  did  not  keep  his  place 
and  cease  exchanging  signs  you  would  shoot 
him  ;  what  was  Cromwell's  reply  ? 

A.  He  made  no  reply,  but  lay  down. 

Q.  Are  not  most  of  the  persons  whose 
names  you  have  given  as  making  those 
signs  in  your  presence,  the  same  you  stated 
to  have  gathered  around  you  and  Mr.  Ganse- 
voort  on  the  26th  Nov.  suspicious  of  you 
and  anxious  to  overhear  ? 

A.  Yes,  sir. 

Q.  If  they  were  suspicious  of  you,  hovr 
came  these  signals  to  pass  in  your  pres- 
ence? 

A.  They  did  not  think  I  was  looking  at 
them. 


PROCEEDINGS  OF  THE 


Q.  What  did  Wilson  say  when  you  ob- 
served him  drawing  at  the  handspike  ? 

A.  Not  a  word,  he  got  up  and  went  to 
drawing  water. 

Q.  If  you  thought  he  had  any  mutinous 
intentions,  why  did  you  not  report  this  till 
next  morning  ? 

A.  I  did  report  it  that  morning,  not  only 
to  Commander  Mackenzie,  but  also  to  Lieut. 
Gansevoort,  as  soon  as  I  could  leave  the 
deck,  I  was  in  charge  of  the  prisoners  that 
morning ;  it  occurred  about  half-past  four 
o'clock  and  was  reported  about  eight. 

Q.  On  the  evening  of  the  27th,  when 
Commander  Mackenzie  told  Cromwell  that 
he  should  be  taken  to  the  United  States  and 
tried,  to  be  acquitted  if  innocent  and  pun- 
ished  if  guilty,  what  was  Cromwell's  reply  ? 

A.  He  made  no  reply  that  I  heard. 

Q.  At  the  time  that  Commander  Mac- 
kenzie was  so  stating  to  Cromwell,  was  Mr. 
Spencer  near  enough  by  his  position  to  have 
overheard  it  ? 

A.  Mr.  Spencer  was  on  the  larboard  arm- 
chest,  and  this  conversation  took  place  on 
the  starboard  side  of  the  quarter-deck,  amid- 
ships of  the  trunk,  I  should  think  it  was 
near  enough  to  hear. 

Q.  Do  you  know  when  he  or  Mr.  Spen- 
cer were  first  afterward  told  there  was  no 
intention  to  take  them  to  the  United  States  ? 

A.  I  don't  know  that  they  were  told  so. 

Q.  At  the  time  Commander  Mackenzie 
•was  making  this  declaration  to  Cromwell 
had  he  been  informed  that  the  mutiny  was 
to  break  out  before  the  arrival  of  the  brig  at 
St.  Thomas  ? 

A.  I  don't  know,  I  believe  he  was. 

Q.  How  long  have  you  been  in  the  ser- 
vice ? 

A.  About  eight  months. 

Q.  Did  you  not  hear  Mr.  Spencer  tell 
Commander  Mackenzie  that  his  conversa- 
tion with  you  was  in  jest  and  that  he  could 
not  remember  what  he  told  you  ? 

A.  No,  sir. 

BY    THE    COURT. 

Q.  Did  either  of  the  prisoners  make  any 
defence  of  their  conduct,  or  ask  pardon,  or 
make  any  promises  of  amendment  ? 

A.  No,  sir  ;  Small  said,  when  about  to  be 
executed,  that  his  sentence  was  just,  that  he 
deserved  to  die. 

Q.  Did  Commander  Mackenzie  exhibit 


in  any  respect  at  any  time,  malicious  feel- 
ing toward  the  prisoners  ? 

A.  No,  sir,  he  was  very  kind  and  did  all 
he  could  for  their  comfort. 

Q.  Did  Commander  Mackenzie  in  any 
way  taunt  Mr.  Spencer  ? 

A.  No,  sir,  he  did  not,  while  he  was 
holding  the  conversation  with  Mr.  Spencer 
at  the  arm-chest.  He  (the  commander)  was 
weeping. 

Q.  Were  you  ever  on  board  of  a  man-of- 
war  before  ? 

A.  Never  to  sea  in  one  ;  I  have  been  on 
board  of  the  Ontario  for  a  month. 

The  testimony  of  J.  W.  Wales  was  here 
suspended  ;  his  evidence  was  read  to  him 
and  corrected  by  him.  % 

The  Court  then  adjourned  until  to-mor- 
row, Thursday,  Feb.  9,  at  10  o'clock. 


U.  S.  SHIP  NORTH  CAROLINA, 

New  York,  Feb.  9,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "        Gwinn, 

"       Turner,  "        Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Smith,  "        Shubrick, 

"       Storer,  Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 
J.  W.  Wales  recalled. 

BY  THE  JUDGE  ADVOCATE. 

Q.  When  did  you  first  tell  Mr.  Spencer's 
plan  as  to  the  taking  and  use  of  the  females 
from  the  vessels  he  should  capture  ? 

A.  I  believe  I  told  it  before  the  exami- 
nation of  the  council  of  officers  ;  I  think  I 
did  ;  I  won't  be  sure. 

Q.  If  you  did  not  tell  it  then,  did  you  tell 
it  to  any  one  before  the  execution,  and  to 
whom  1 

A.  I  think  I  told  it  to  Mr.  Gansevoort ;  I 
think  I  told  it  then  ;  I  won't  be  sure. 

Q.  You  say  at  the  time  of  Commander 
Mackenzie's  conversation  with  Cromwell 
at  the  time  of  his  arrest,  you  believe  Com- 
mander Mackenzie  knew  that  the  mutiny 
was  to  break  out  before  the  arrival  at  St.. 


NAVAL  COURT  MARTIAL. 


Thomas  ?  What  were  your  reasons  for  this 
belief? 

A.  I  don't  know  that  Commander  Mac- 
kenzie did  know  it. 

BY    THE    COURT. 

Q.  What  was  the  deportment  of  the  crew 
at  large  at  the  moment  antecedent  to  the 
execution  ? 

A.  Unruly,  disorderly ;  but  I  noticed  some 
of  them  disorderly  and  manifested  dissatis- 
faction . 

Q.  Had  you  never  any  idea  that  a  muti- 
ny was  intended  before  your  conversation 
with  Midshipman  Spencer  on  the  booms  ? 

A.  No,  sir;  never. 

Q.  Did,  or  did  not  the  surly  and  reluc- 
tant conduct  of  the  half  or  two  thirds  of 
crew  embrace  the  younger  portion  of  the 
crew  ? 

A.  No,  sir ;  it  was  the  older  portion  of  the 
crew,  the  larger  boys. 

Q.  You  say,  when  you  were  in  charge 
of  the  prisoners  on  the  arm-chest,  Wilson 
took  hold  of  a  handspike  near  the  launch  ; 
please  to  state  the  distance  between  the 
arm-chest  and  the  launch,  and  where  were 
the  officer  of  the  deck  and  midshipman  of 
the  watch  then  ? 

A.  The  officer  of  the  deck  was  by  the 
wheel ;  the  midshipman  of  the  watch  was 
by  the  forward  Jacob's  ladder.  I  was  on 
the  starboard  side  of  the  quarter-deck  about 
midships  of  the  trunk,  and  Wilson  was  on 
the  larboard  side  of  the  stern  of  the  launch, 
the  distance  forty  feet,  more  or  less. 

Q.  Did  you  ever,  at  any  time  before  the 
execution,  communicate  the  disrespectful 
language  you  heard  Mr.  Spencer  and  Crom- 
well use  toward  Commander  Mackenzie  to 
that  officer  ? 

A.  Yes,  sir;  I  did  at  the  council  of  offi- 
cers make  it  known. 

Q.  Did  you  observe  Mr.  Spencer  en- 
deavoring to  get  a  boarding-axe  from  the 
rack  after  he  was  confined  ? 

A.  Yes,  sir;  I  saw  him  endeavoring  to 
use  it ;  he  sat  by  the  arm-chest,  and  near 
the  arm-chest  was  the  battle-axe  rack, 
which  contained  battle-axes.  I  noticed  Mr. 
Spencer  one  day  taking  it  out  and  working 
it  in  his  hands,  to  see  how  he  could  work 
the  axe  with  his  irons  on  ;  I  reported  this 
circumstance  to  Mr.  Gansevoort,  and  he  re- 
ported it  to  the  commander.  The  battle- 
axes  were  then  locked  up  in  the  arm-chest. 

i 


Q.  What  were  your  orders  when  put  in 
charge  of  the  prisoners  ? 

A.  If  they  attempted  to  get  away,  or  any 
attempt  to  rescue  was  made,  to  shoot  the 
prisoners  down  first. 

Q.  Did  Cromwell  raise  up  in  his  bed  in 
consequence  of  the  men  putting  their  hands 
to  their  chins  ?  and  did  he  make  any  sign 
in  return  ? 

A.  He  rose  up  in  his  bed,  and  he  was 
looking  at  them  as  though  he  knew  what 
they  were  about. 

Q.  During  your  examination  before  the 
board  of  officers  relative  to  the  mutiny,  were 
either  Mr.  Spencer,  Samuel  Cromwell,  or 
Elisha  Small,  present  ? 

A.  No,  sir. 

Q.  Was  Mr.  Spencer  still  awake  on  your 
going  the  second  time  to  the  steerage  ? 

A.  Yes,  sir ;  lifted  up  his  head  a  second 
time. 

Q.  Wrhen  you  issued  an  unusual  quantity 
of  tobacco  and  segars  to  Mr.  Spencer,  and 
he  distributed  them  among  the  boys,  know- 
ing it  to  be  contrary  to  the  regulations,  did 
you  report  it  to  your  superior  officer  ? 

A.  I  issued  to  Mr.  Spencer  a  large  quan- 
tity of  tobacco  and  segars,  but  did  not  report 
the  fact. 

Q.  Was  the  examination  held  in  the 
wardroom,  and  were  the  officers,  during 
the  examination  before  the  board  (except 
the  one  examined),  on  deck  ? 

A.  The  examination  was  held  in  the 
wardroom ;  the  commander  was  on  deck 
the  whole  time  ;  so  also  were  the  two  acting 
midshipmen  and  myself  a  good  portion  of 
the  time.  I  don't  know  that  any  of  the 
commissioned  officers,  or  either  of  the  three 
midshipmen,  left  the  wardroom  during  the 
sitting  of  the  council.  Mr.  Perry,  the  cap- 
tain's clerk,  and  the  petty  officers  of  the 
watch,  were  on  deck  also. 

Q.  What  was  the  behavior  of  the  crew 
pending  the  examination  ? 

A.  I  noticed  them  still  disorderly ;  had 
to  give  an  order  two  or  three  times  before 
they  would  obey  it ;  unruly. 

9 
BY    THE    JUDGE    ADVOCATE. 

Q.  Did  you  report  the  incident  of  Wil- 
son and  the  handspike  to  the  officer  of  the 
deck  or  the  midshipman  who  was  at  the 
forward  Jacob's  ladder  ? 

A.  1  think  I  did  ;  I  don't  recollect  who 
was  officer  of  the  deck,  or  midshipman. 


26 


PROCEEDINGS  OF  THE 


Q.  Were  not  the  battle-axes  within  a  foot 
of  the  arm-chest  ? 

.A.  Rather  over  a  foot ;  I  should  think 
about  two  feet. 

Q.  What  had  Mr.  Spencer  to  engage 
himself  about  to  pass  time  while  in  confine- 
ment ?  had  he  books  ?  and  how  did  he  pass 
his  time  ? 

A.  He  had  books  if  he  wanted  them ; 
there  were  orders  to  let  him  have  whatever 
books  he  wished  to  read,  but  he  passed  his 

time  sittino-  down  bv  the  arm-chest. 

-     , 

BY    COMMANDER    MACKENZIE. 

Q.  Was,  or  was  not  the  difficulty  that 
had  occurred  between  Commander  Macken- 
zie and  yourself  generally  known  on  board 
of  the  Somers  previous  to  the  discovery  of 
the  mutiny  ? 

A.  Yes,  sir ;  it  was. 

Q.  Do  yon,  or  do  you  not  know  whether 
the  change  of  conduct  of  Cromwell  toward 
the  boys,  from  severity  to  indulgence,  was 
in  consequence  of  the  reprimand  of  the* 
commander?  or  can  you  say  whether  the 
change  immediately  followed  such  repri- 
mand ? 

A.  I  don't  think  the  change  Avas  occa- 
sioned by  the  reprimand  of  the  comman- 
der ;  it  did  not  immediately  follow  the  repri- 
mand. 

Q.  Do  you  know  anything  of  Cromwell 
and  Small  having  been  in  slavers  ? 

Objection  having  been  made  to  this  ques- 
tion by  the  judge  advocate,  the  court  was 
cleared,  and  on  opening  it,  Commander 
Mackenzie  was  informed  that  this  question 
should  go  on  record,  but  could  not  be  an- 
swered by  the  witness.  Commander  Mac- 
kenzie then  submitted  the  following  state- 
ment of  facts  : 

"  The  accused  offers  to  prove,  that  both 
Cromwell  and  Small,  by  their  own  admis- 
sion to  several  witnesses,  had  served  in 
slavers  ;  that  Cromwell  had  been  captured 
in  a  slaver  and  confined  in  the  Moro  castle, 
and  that  these  facts  were  generally  known 
on  board  the  Somers  ;  and  further  requests 
that,  if  this  evidence  be  not  allowed,  this 
offer  may  be  placed  on  the  records  of  the 
court. 

"  Very  respectfully,  your  most  obedient, 
"ALEX'R  SLIDELL  MACKENZIE." 

Q.  The  judge  advocate  has  asked  you  if 
Mr.  Spencer  told  you  in  your  interview  with 


him  on  the  booms,  that  your  name  was  on 
the  list  from  the  time  of  your  interview,  in 
which,  as  you  testify,  you  led  Mr.  Spencer 
to  believe  you  approved  his  plan  and  would 
join  in  the  mutiny  ;  did,  or  did  not  a  sufficient 
period  elapse  for  him  to  have  inserted  your 
name  on  the  list  previous  to  the  arrest  of 
Mr.  Spencer  and  the  discovery  of  the  list  ? 

A,  Yes,  sir ;  a  sufficient  time  did  elapse  ; 
he  had  nearly  twenty-four  hours  to  put  it 
down. 

Q.  Where  was  Cromwell  when  Mr.  Spen- 
cer asked  to  be  permitted  to  see  you?  State 
what  was  the  position  of  Mr.  Spencer  and 
Cromwell  with  regard  to  each  other  ? 

A.  Cromwell  and  Mr.  Spencer  were  pro- 
ceeding to  the  place  of  execution ;  they 
were  both  on  the  larboard  side  of  the  quar- 
ter-deck, near  the  forward  part  of  the  trunk  ; 
Cromwell  was  a  little  ahead ;  Commander 
Mackenzie  ordered  Cromwell  to  stop  and 
let  Mr.  Spencer  pass  first ;  Mr.  Spencer 
passed  by,  so  as  to  touch  Cromwell,  when 
Mr.  Spencer  told  Commander  Mackenzie 
he  desired  to  speak  to  me  ;  I  think  they 
touched  each  other  when  Mr.  Spencer  ad- 
dressed me. 

Q.  Did  Mr.  Spencer  say  anything  at  this 
time  about  the  innocence  of  Cromwell  ? 

A.  Not  a  word. 

Q.  Did  Cromwell  appeal  to  Mr.  Spencer 
to  attest  his  innocence  ? 

A.  No,  sir. 

BY    THE    COURT. 

Q.  Was  not  the  conduct  of  Mr.  Spencer 
generally  wayward  or  eccentric,  or  other- 
wise ? 

A.  I  don't  know,  sir;  I  noticed  some- 
times he  was  rather  singular,  dull,  stupid ! 

Q.  Did,  or  did  not  any  sense  of  danger 
cross  your  mind,  while  so  many  officers 
were  below  deck  in  council  ? 

A.  Yes,  sir,  it  did  ;  at  dark  the  Com- 
mander ordered  them  upon  deck ;  he  was 
apprehensive  of  danger. 

BY    THE    JUDGE    ADVOCATE. 

Q.  What  was  the  treatment  of  Comman- 
der Mackenzie  to  his  crew,  humane  or  oth- 
erwise ?  did  he  or  not  inflict  unusual  or  un- 
necessary punishment  ? 

A.  The  treatment  of  the  crew  was  very- 
humane  ;  I  have  frequently  seen  him  send 
dishes  from  his  own  table  to  the  sick;  I 
have  known  him  give  fruit  from  his  own. 


NAVAL  COURT  MARTIAL. 


27 


private  stores  to  the  crew,  I  never  saw  an 
instance  of  unjust  punishment  since  I  have 
been  on  board  the  brig,  and  I  have  been  on 
board  of  her  ever  since  she  has  been  in 


commission. 


BY    THE    COURT. 


Q.  How  long  were  the  officers  in  coun- 
cil? 

A.  One  day  and  part  of  another  ;  it  was 
the  30th  November  and  the  1st  of  Decem- 
ber ;  they  sat  ten  hours  one  day  and  three  or 
four  the  next,  making  in  all  thirteen  or  four- 
teen hours. 

Q.  During  that  time  what  duty  was  car- 
ried on  on  deck  ? 

A.  The  vessel  was  in  the  trade  winds, 
not  much  doing. 

Q.  How  was  the  brig  sailing  ? 

A.  I  think  she  had  studding  sails  ;  she 
•was  nearly  before  the  wind. 

Q.  Did  you  ever  hear  Commander  Mac- 
kenzie urge  upon  his  crew  the  propriety  of 
correct  conduct,  as  a  statement  of  every 
punishment  must  be  sent  to  the  Navy  De- 
partment ? 

A.  Yes,  sir  ;  every  time  he  inflicted  pun- 
ishment he  talked  of  it. 

BY    COMMANDER    MACKENZIE. 

Q.  During  the  time  that  the  officers  were 
deliberating  in  council,  do  you,  or  do  you 
not  recollect  whether  the  watch  on  deck 
was  employed  in  squaring  the  rattlings  of 
the  rigging,  or  scraping  the  tops  and  masts  ? 

A.  I  don't  recollect. 

BY    THE    COURT. 

Q.  Was,  or  was  not  any  particular  pre- 
caution taken  against  those  persons  on  deck 
supposed  to  be  disaffected,  while  the  offi- 
cers were  in  council  below  ? 

A.  We  kept  a  strict  watch  on  them,  kept 
a  good  lookout  on  them ;  the  officers  on 
deck  were  armed  ;  so  also  were  the  petty 
officers. 

The  testimony  of  J.  W.  Wales  was  here 
closed.  His  evidence  was  then  read  to 
him,  and  corrected  by  him. 

William  Neville  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  you  on  board  the  Somers  on  her 
last  cruise  ? 
A.  Yes,  sir. 


Q.  Do  you  know  anything  of  a  private 
interview  between  Mr.  Wales  and  Mr. 
Spencer  ?  If  so,  state  when  the  same  took 
place. 

A.  I  saw  them  on  the  booms  the  night 
before  Mr.  Spencer  was  arrested  ;  I  don't 
know  the  hour ;  it  was  evening,  in  the  first 
dog-watch,  I  think. 

Q.  How  long  did  they  converse  together, 
and  was  their  conversation  in  a  low  voice  ? 

A.  I  think  they  were  there  very  nearly 
two  hours  ;  I  could  not  hear  what  they  said. 

Q.  While  Mr.  Spencer  and  Mr.  Wales 
wrere  conversing,,  did  you  see  Small  ap- 
proach ?  If  so,  what  took  place  ?  Did  any 
conversation  take  place  between  Mr.  Spen- 
cer and  Small  ? 

A .  Some  one  came  past  the  bitts  as  I  was 
going  below,  but  I  could  not  say  who  it  was  ; 
he  stopped ;  whether  he  conversed  or  not, 
don't  know. 

BY  THE  COURT. 

Q.  What  is  your  age,  what  your  rate, 
and  where  were  you  stationed  on  board  the 
Somers  ? 

A.  My  age  is  19;  I  rate  on  board  the 
Somers  as  an  ordinary  seaman ;  I  am  sta- 
tioned in  the  foretop. 

Q.  You  have  said  that  you  saw  Mr. 
Spencer  and  Mr.  Wales  in  conversation 
on  the  booms,  on  the  evening  before  Mr. 
Spencer  was  arrested,  and  that  you  think  it 
was  in  the  first  dog-watch.  Do  you  or 
not  recollect  whether  it  was  before  or  after 
dark? 

A.  Twas  not  dark. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Were  you  in  the  foretop  on  the  day 
of  Mr.  Spencer's  arrest  ? 

A.  Yes  sjr ;  I  had  been  in  the  foretop 
three  or  four  times  in  the  course  of  the 
day  ;  don't  know  how  much  time  I  spent 
there.  • 

BY  THE  COURT. 

Q.  Was  it  your  watch  on  deck  when  the 
conversation  between  Mr.  Spencer  and  Mr. 
Wales  took  place,  and  when  did  your  watch 
expire  ? 

A.  I  think  it  was  my  watch  on  deck  ;  I 
am  not  certain  whether  my  watch  expired 
at  six  or  eight  o'clock. 

Q.  If  it  was  not  dark,  why  could  you  not 
recognise  the  man  who  came  up  and  joined 
Mr.  Spencer  and  Wales  ? 


28 


PROCEEDINGS  OF  THE 


.A.  I  didn't  take  no  notice  ;  I  was  going 
below  ;  could  not  be  certain  whether  it  was 
a  man  or  boy. 

Q.  How  far  were  you  from  Spencer  when 
he  was  conversing  with  Wales  ? 

A.  About  five  foot. 

BY  THE   JUDGE  ADVOCATE. 

Q.  Did  you  come  up  again,  and  when, 
from  below  ? 

A.  Yes,  sir,  I  came  up  in  a  few  minutes 
from  below  ;  not  more  than  three  minutes. 

Q.  Were  Wales  and  Spencer  still  in 
conversation  on  the  booms  ? 

A.  I  don't  know  ;  I  went  on  the  larboard 
side. 

Q.  How  long  was  it  before  you  came 
round  to  the  side  where  you  might  have 
commanded  a  view  of  them  1 

A.  I  don't  know  that  I  came  round  on  the 
starboard  side  again  before  the  watch  went 
below. 

Q.  When  did  you  next  see  Mr.  Spencer 
or  Mr.  Wales  ? 

A.  Next  morning. 

Q.  Was  Mr.  Spencer  in  the  foretop  when 
you  went  up,  on  the  day  of  his  arrest  ? 

A.  I  don't  know  ;  I  have  seen  him  in  the 
foretop. 

Q.  Do  you  remember  how  Mr.  Spencer 
was  employed  the  day  of  his  arrest  ? 

A.  No,  sir. 

Q.  Are  you  intimate  with  Mr.  Wales  ? 

A.  No,  sir. 

BY  THE  COURT. 

Q.  Do  you  recollect  seeing  Green,  a  fore- 
castle man,  in  the  foretop  on  the  day  of  Mr. 
Spencer's  arrest  ? 

A.  I  have  seen  him  in  the  foretop  more 
than  one  day,  pricking  India  ink  into  Mr. 
Spencer's  arm ;  I  do  not  recollect  that  he 
was  there  that  day. 

Q.  Had  you  any  knowledge  of  the  in- 
tended mutiny  before  the  arrest  of  Mr. 
Spencer  ? 

A.  No,  sir. 

The  testimony  of  William  Neville  was 
here  closed.  His  evidence  was  then  read 
to  him  and  corrected  by  him. 

Henry  Strummels  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  you  on  board  the  Somers  in  her 
late  cruise  ? 


A.  Yes,  sir  ;  I  am  first  class  boy ;  I  am 
fifteen  years  of  age,  stationed  in  the  foretop. 

Q.  Do  you  know  anything  of  a  private 
interview  between  Mr.  Wales  and  Mr.  Spen- 
cer ?  If  so,  state  when  the  same  took  place, 
and  all  the  circumstances  you  observed. 

A.  'Twas  on  the  night  before  Mr.  Spen- 
cer* was  arrested  ;  I  saw  Mr.  Spencer  and 
Mr.  Wales  on  the  booms  on  the  starboard 
side  forward,  over  the  fore-hatch  ;  I  was 
sitting  on  the  bitts  about  half  an  hour  ;  I  did 
not  observe  them  up  there  till  I  came  off  the 
bitts ;  the  boy  Ward  M.  Gazely  was  with 
me  ;  I  heard  Mr.  Spencer  call  for  Small ; 
he  said  something  to  Small ;  Small  turned 
his  head  around,  and  seemed  astonished  ;  I 
could  not  hear  anything  they  said  ;  I  ob- 
served nothing  else. 

BY  THE  JUDGE  ADVOCATE. 

Q.  How  long  did  Small  continue  in  con- 
versation with  Mr.  Wales  and  Mr.  Spencer  ? 

A.  For  ten  or  fifteen  minutes  ;  I  saw 
Small  conversing  with  Mr.  Spencer  and 
Wales  ;  I  was  on  the  bitts  for  half  an  hour  ; 
I  did  not  observe  any  one  talking  near  me, 
but  heard  some  one,  and  looked  up  and  saw 
them ;  it  was  in  the  second  dog-watch,  I 
think. 

Q.  Did  they  get  down  from  the  booms 
before  you  left  the  deck  1 

A.  No,  sir. 

Q.  When  did  you  next  come  on  deck  ? 

A.  At  eight  o'clock. 

Q.  Were  they  then  on  the  booms  ? 

A.  I  can't  recollect. 

Q.  When  did  you  next  see  Mr.  Wales 
after  having  seen  him  with  Mr.  Spencer  ? 

A.  I  can't  recollect  seeing  him,  not  till 
next  morning. 

Q.  Where  were  you,  and  what  was  you 
about,  when  you  came  upon  deck,  after 
having  seen  Mr.  Spencer  and  Mr.  Wales 
upon  the  booms  ? 

A.  When  the  watch  was  called  I  came 
on  deck  and  answered  my  muster,  and  then 
lay  down  on  deck  to  sleep ;  most  of  the 
crew  lay  down  in  the  night  watches. 

Q.  Was  you  on  the  bitts  afterward  that 
evening  ? 

A.  No,  sir. 

Q.  Did  you  see  Neville  when  Spencer 
called  Small. 

A.  No,  sir,  I  don't  recollect  seeing  him. 

Q.  How  far  was  Mr.  Spencer  and  Wales 
from  you  ? 


NAVAL  COURT  MARTIAL. 


29 


A.  About  four  or  five  feet  across  the  deck ; 
a  little  further  on  account  of  the  height  of 
the  booms  when  I  went  away  from  them, ' 
and  all  the  time  about  five  feet  off. 

Q.  Did  you  hear  them  laugh  at  all  ? 

A.  No,  sir. 

Q.  How  far  was  Small  from  you  ? 

A.  He  was  about  six  feet  from  me,  and  ! 
a  foot  from   Mr.  Spencer  ;  don't  think  he 
was  whispering  in  his  ear. 

Q.  Did  you  hear  Small  tell  Mr.  Spencer 
to  speak  lower,  that  little  pitchers  had  long 
ears,  or  anything  of  that  kind  ? 

A.  No,  sir. 

Q.  Did  Small  leave  before  you  did  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  Mr.  Spencer  tell  Small 
to  speak  to  that  foretop  man  ? 

A.  No,  sir. 

Q.  What  did  Mr.  Spencer  say  to  call 
Small  to  him  ? 

A.  He  called  him  «  Small ;"  that's  all  I 
heard  ;  he  said  it  in  a  distinct  voice. 

Q.  Was  the  conversation  with  Spencer 
and  Small  in  English  ? 

A.  I  could  not  hear  the  language  they 
were  talking  ;  they  were  speaking  in  a  mum- 
bling voice. 

BY  THE  COURT. 

Q.  Was  Mr.  Spencer's  face  or  back  tow- 
ard you  when  in  conversation  with  Mr. 
Wales  and  Small  ? 

A.  His  face  was  toward  me. 

Q.  Do  you  or  not  recollect  seeing  Mr. 
Spencer  in  the  foretop,  conversing  with 
Green,  the  forecastle  man,  during  the  fore- 
noon of  the  day  Mr.  Spencer  was  arrested  ? 

A.  Don't  recollect  seeing  him. 

BY   THE  JUDGE  ADVOCATE. 

Q.  Were  you  much  in  the  top  that  day  ? 

A.  Not  more  than  usual ;  once  or  twice 
in  each  watch,  and  I  had  two  four-hour 
watches  and  a  dog-watch  a  day,  and  would 
stay  in  the  top  as  long  as  my  duty  required  ; 
I  do  not  recollect  what  duty  I  performed 
that  day. 

BY  THE  COURT. 

Q.  Was  it  dark  when  you  saw  Small 
join  Mr.  Spencer  and  Wales  ? 

A.  Yes,  sir ;  it  was  a  moonlight  night, 
just  after  dark. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Could  you  see'  Mr.  Spencer's  face  all 
the  time  you  were  on  the  bitts  ? 


A.  I  could  have  seen  it  if  I  pleased,  but 
did  not  notice  it  all  the  time. 

The  testimony  of  Henry  Strummels  here 
closed  ;  his  evidence  was  read  to  him  and 
corrected  by  him. 

Ward  M.  Gazely  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name  and  age  ?  were 
you  on  board  the  Somers  in  her  last  cruise  ? 
and  if  so,  in  what  capacity  1 

A.  My  name  is  Ward  M.  Gazely;  I  am 
fifteen  years  of  age  ;  I  was  on  board  the 
Somers  as  first-class  boy. 

Q.  Did  you  or  did  you  not,  on  the  night 
previous  to  Mr.  Spencer's  arrest,  observe 
him  and  Mr. Wales  in  conversation  together? 
if  you  did,  where  and  at  what  hour  did  such 
conversation  take  place,  and  how  long  did 
it  last  ?  state  all  you  can  recollect  concern- 
ing it. 

A.  Mr.  Spencer  and  Mr.  Wales  sat  on 
the  booms  ;  Small,  Strummel.  and  myself, 
sat  on  the  bitts  ;  I  heard  Mr.  Wales  and 
Mr.  Spencer  talking  a  great  deal  together 
as  we  were  sitting  on  the  bitts  ;  Small  was 
called  up,  and  Mr.  Spencer  said  something 
to  him ;  he  did  not  like  it,  he  seemed  dis- 
pleased and  drew  his  head  back ;  Mr. 
Spencer  said,  "  It  is  all  one,  I'll  have 
another  conversation  with  you  to-night ;"  I 
heard  nothing  else  that  passed  between 
them. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  Small  immediately  leave  Mr. 
Spencer  after  the  last  remark  you  say  Mr. 
Spencer  made  ? 

A.  I  don't  recollect ;  I  went  below  after 
that  took  place  ;  Small  came  alongside  of 
me  on  the  bitts,  and  I  went  below. 

Q.  Where  did  you  leave  Strummell  ? 

A.  I  believe  he  went  forward  after  that. 

Q.  Could  you  hear  in  what  language 
Spencer  and  Wales  were  talking  ? 

A.  No,  sir. 

Q.  When  did  you  next  come  up,  and 
when  did  you  next  see  Mr.  Spencer  ? 

A.  I  don't  recollect  when  I  next  saw  Mr. 
Spencer ;  I  don't  know  when  I  next  came 
up  from  below. 

Q.  Did  Small  talk  with  you  when  on  the 
bitts  ? 

A.  He  stood  talking  with  me.  before,  but 
not  afterward. 


30 


PROCEEDINGS  OF  THE 


Q.  Did  you  hear  Mr.  Spencer  call  Mr. 
Wales  on  the  booms  ? 

A.  No,  sir. 

Q.  Did  you  hear  Small  tell  Mr.  Spencer 
not  to  speak  so  loud  ? 

A.  No,  sir. 

Q.  Though  you  did  not  hear  what  was 
said,  were  you  near  enough  to  hear  that 
they  were  in  conversation  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  any  conversation  in 
Spanish  ? 

.A.  No,  sir. 

Q.  How  long  were  Spencer  and  Small 
in  conversation  ? 

A.  About  a  minute  or  better. 

Q.  Did  Small  come  back  immediately  to 
youf  side,  or  by  you  ? 

A.  He  came  back  by  me,  he  sat  beside 
me,  both  before  and  after. 

Q.  Why  do  you  think  Small  was  not 
more  than  a  minute  in  conversation  with 
Mr.  Spencer? 

A.  Because  I  was  sitting  right  under 
Mr.  Spencer  and  Wales. 

Q.  Was  Small  sitting  right  under  them, 
also  ? 

A.  No,  sir;  he  was  alongside  of  us ;  he 
was  sitting  under  the  sparetopmast. 

Q.  How  did  Mr.  Spencer  call  Small  to 
him  ? 

Ay  I  don't  recollect  hearing  him  call  him 
at  all ;  he  came  up. 

Q.  Do  you  mean  that  Small  got  up  of  his 
own  accord  to  go  to  Mr.  Spencer  and  Wales  ? 

A.  No,  sir;  I  don't  recollect  that  lie 
was  called. 

The  testimony  of  Ward  M.  Gazely  here 
closed  ;  his  evidence  was  read  to  him  and 
corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Friday),  Feb.  10,  at  10  o'clock,  A.  M. 


Advocate,  and   Commander   Alex.   Slidell 
Mackenzie,  accused. 

The  journal  of  the  'preceding  day  was 
read  and  approved. 

Commander  Mackenzie  then  submitted 
the  following  paper,  which  was  read  by  the 
Judge  Advocate : 

"  May  it  please  the  court :  I  am  prepared 
to  prove,  that  in  the  ship  in  which  Mr. 
Spencer,  previously  to  his  joining  the  Som- 
ers,  sailed,  he  had  a  project  to  capture  that 
ship,  and  to  convert  her  into  a  pirate  ;  and 
that  he  communicated  such  project  to  seve- 
ral of  her  forward  officers,  and  in  the  pres- 
ence of  various  of  her  crew.  I  respect- 
fully desire  to  know  whether  such  testimony 
will  be  received  by  the  court,  in  order  that 
the  necessary  witnesses  to  prove  it  may  be 
summoned  from  Norfolk. 

"  I  have  the  honor  to  be,  very  respect- 
fully,  your  most  obedient, 

"  ALEX.  SLIDELL  MACKENZIE, 
"  Commander  U.  S.  NS 


U.  S.  SHIP  NORTH  CAROLINA, 

February  10,  1843. 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present  — 

Captain  Downes,     Captain  McKeever, 
Read, 
Bolton, 
**       Turner, 


Sloat, 

Smith, 

Storer, 


li       Page, 
"       Gwinn, 
"       Wyman, 
Com'dr  Ogden, 
"       Shubrick, 
Members  ; 


W»,  H.  Norn?,  Esq.,  of  Baltimore,  Judge 


The  court  was  then  cleared;  and  on  the 
opening  of  the  court,  the  judge  advocate 
stated  that  the  court  had  decided  that  such 
testimony  would  not  be  admitted. 

J.  VV.  Wales  recalled. 

EXAMINED  BY  COMMANDER    MACKENZIE. 

Q.  You  have  testified  that  you  were  in- 

!  formed  by  Mr.  Spencer,  after  you  had  given 

i  him  to  understand  that  you  liked  his  plan 

I  of  mutiny  and  piracy  and  were  inclined  to 

I  join  it,  that  you  should  have  the   berth  of 

third  officer  ;   did  you  understand  to  whom 

Mr.  Spencer  had  assigned  the  stations  of 

chief  and  second  officer  ? 

A.  Yes,  sir;  I  presumed  that  Cromwell 
would  be  first,  and  Small  second  officer ; 
the  reason  of  my  presuming  so  was,  that  he 
was  so  intimate  with  Cromwell — more  in- 
timate with  Cromwell  than  with  Small. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Do  you  mean  to  say  that  Spencer 
told  you  that  Cromwell  xvas  to  be  the  first 
officer,  and  Small  the  second  officer,  in  the 
mutiny  and  proposed  piracy  ? 

A.  He  did  not  tell  me  who  was  to  be 
first  officer ;  what  I  based  my  opinion  on 
was  that  Cromwell  understood  navigation 
much  better  than  Small ;  Cromwell  was 
about  thirty-five  years  of  age,  and  Small 
about  thirty. 

Q.  Did  Mr.  JSpencer  mention  Cromwell's 


NAVAL  COURT  MARTIAL. 


31 


name  or  any  other  person's  name  to  you  in 
conversation  ? 

A.  He  did  not  mention  Cromwell's  name ; 
hie  mentioned  no  names. 

BY  THE  COURT. 

Q.  Were  Cromwell  and  Small  particu- 
larly active  and  athletic  men  ? 

A.  Cromwell  was  particularly  active  and 
athletic  ;  Small  was  not  so  large,  but  active. 
I  stated,  yesterday,  that  at  the  council  of 
officers  I  stated  "all  the  officers  were  armed  j 
and  the  petty  officers  ;"  I  now  say,  only  one 
of  the  petty  officers,  the  master-at-arms, 
was  armed ;  the  other  six  were  armed  the 
morning  of  the  execution. 

BY  T-HE  COURT. 

Q.  Do  you  know  that  Small  had  been 
mate  of  a  vessel,  except  from  his  own  as- 
sertion ? 

A.  No,  sir  ;  he  told  me  so. 

BY  THE   JUDGE  ADVOCATE. 

Q.  Do  you  understand  navigation  1 

A.  No,  sir. 

Q.  How  do  you  know  that  Cromwell  un- 
derstood navigation  ? 

A.  I  have  seen  him  working  out  a  day's 
work  ;  Cromwell  would  show  Mr.  Spencer, 
tell  him  when  he  was  wrong. 

The  testimony  of  J.  \V.  Wales  was  here 
closed  ;  his  evidence  was  read  to  him  and 
collected  by  him. 

Purser  Heiskill  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : 


EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  you  on  board  the  Somers  in 
her  last  cruise  ?  if  so,  in  what  capacity  t 

A.  I  was,  in  capacity  of  purser ;  my 
name  is  H.  M.  Heiskill. 

Q.  Did  you  or  did  you  not  at  any  time 
hear  of  an  intended  mutiny  on  board  the 
Somers  ?  if  so,  from  whom,  and  when  1 

A.  Yes,  sir,  I  did,  from  Mr.  Wales,  on 
the  morning  of  the  '26th  November. 

Q.  State  all  that  then  passed  between 
you  and  Mr.  Wales  ;  did  or  did  not  Mr.  j 


vealed  to  him  a  plan  that  he  had  formed  for 
taking  the  vessel  out  of  the  hands  of  the 
officers,  and  murdering  them  and  turning 
pirates ;  that  he  was  to  be  made  third  offi- 
cer on  board ;  and  requested  me  to  make 
the  matter  known  immediately  to  Lieutenant 
Gansevoort,  that  it  might  get  to  the  cars  oi' 
the  commander ;  he  was  afraid  to  be  seen 
by  Mr.  Spencer  or  any  of  the  crew  talking 
to  Mr.  Gansevoort ;  I  told  him  that  I  would 
inform  Mr.  Gansevoort  as  soon  as  he  came 
down  into  the  ward-room ;  I  requested 
Wales  to  follow  Mr  Gansevoort  below,  and 
open  my  store-room  door,  which  nearly 
closed  the  entrance  into  the  ward-room  ;  he 
did  so  ;  the  object  was  to  prevent  Mr.  Sperr- 
cer  or  any  one  from  seeing  Mr.  Gansevoort 
and  myself  in  conversation  ;  I  believe  he 
followed  my  directions :  I  related  the  mat- 
ter to  Mr.  Gansevoort,  and  he  made  the 
matter  known  to  the  commander  imme- 
diately ;  the  communication  the  greater  part 
of  that  day,  from  Mr.  Wales,  was  through 
me  to  Mr.  Gansevoort ;  Mr.  Wales  men- 
tioned that  he  made  several  attempts  the 
night  before  to  get  to  the  ward-room,  and  1 
think  also  to  the  cabin,  but  was  watched — 
that  he  passed  a  very  restless  night,  and 
took  the  first  opportunity  in  the  morning  of 
making  the  matter  known  to  me  :  this  is  all 
I  recollect  of  this  circumstance  at  this  time-. 

The  testimony  of  Purser  H.  M.  Heiskill 
here  closed,  his  evidence  was  read  to  him 
and  corrected  by  him. 

Lieut.  Gansevoort  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : 


EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  you  on  board  of  trie  Somers  in 
her  late  cruise  ?  and  if  so,  in  what  capacity  f 

A.  I  was  on  board  of  her  as  1st  lieu- 
tenant. 

Q.  Did  you  or  did  you  not  hear  of  an  in- 
tended mutiny  on  board  the  Somers  ?  If  so, 
from  whom,  when,  arid  how  1  state  all  the 
circumstances  fully. 

A.  I  heard  it  from  Mr.  Heiskill  the  pur- 


Wales  appear  under  serious  apprehensions  ]  ser,  on  the  26th  of  November,  about  ten 


that  the  mutiny  would  take  place  ? 

A.  He  did,  sir,  of  course  ;  on  the  morn- 
ing of  the  26th  I  was  sitting  in  the  ward- 
room, as  near  as  I  can  recollect,  about  eight 
o'clock  ;  Mr.  Wales  took  a  seat  beside  me, 
and  in  a  low  tone  of  voice  told  me  that  Mr. 
Spencer  had,  in  the  evening  previous,  re- 


o'clock  in  the  morning,  he  asked  me  if  1  was 
aware  that  there  was  a  plot  on  board  to  take 
the  brig  out  of  the  hands  of  the  officers  and 
murder  them.  Mr.  Wales  met  me  at  the 
fore-hatch  about  ten  o'clock  in  the  morning, 
and  told  me  the  purser  wished  to  see  me  in 
the  ward-room,  He  said  that  Mr.  Wales 


32 


PROCEEDINGS  OF  THE 


had  told  that  Mr.  Spencer  had  called  him  j  was  all  a  joke."    The  commander  ou,tu,     *„ 
upon  the  'forward  part  of  the  booms  the  even-  |  was  a  very  serious  one,  and  one  that  might 
then  communicated   his 


ing  previous  and   then  communicated 
plans,  which  were — to  make  a  row  on  the 
forecastle  in  the  mid-watch,  the  officer  of 


cost  him  his  life."  The  commander  asked 
him  if  he  denied  having  had  frequent  con- 
versations with  Small  and  others  :  he  re- 


go  forward,  when  he  was  to  be  seized  and 
thrown  overboard  ;  they  were  then  to  go  aft, 


the  deck,  Mr.  Rogers,  would  be  induced  to  !  plied,  "  No,  sir,  but  in  joke."     He  did  not 

1    deny  the  conversations,  b"ut  said  it  was  all 
in  joke ;  to  the  best  of  my  knowledge  and 

enter  the  cabin,  and  murder  the  commander  j  FelieT,  I  thus  understood  the  conversation, 
and  officers.  1  reported  the  thing  to  the  I  think  the  commander  asked  him  if  he  had 
commander  immediately;  he  took  it  very  a  paper  concealed  in  his  neck-handkerchief ; 
coolly,  said  the  vessel  was  in  a  good  state  |  he  said,  "  No."  The  commander  ordered 
of  discipline  and  expressed  his  doubts  as  to  j  me  to  have  him  put  in  double  irons.  I  laid 
the  truth  of  the  report,  and  ordered  me  to  j  my  hand  upon  his  sword,  disarmed  him,  and 
keep  a  good  look-out  on  the  crew,  and  Mr.  ,  ordered  him  to  come  out  from  among  the 


I  missed  Mr.  Spen- 
in  the  day  from  the 


Spencer  in  particular, 
cer  about  two  o'clock 
deck ;  I  discovered  he  was  in  the  fore-top . 
I  went  in  the  fore-top,  and  found  him  on  the 
lee-side  of  the  top  apparently  in  deep 
thought ;  he  did  not  discover  me  until  I 
stood  erect  in  the  top.  On  discovering  me 
he  got  up  and  showed  some  confusion,  ask- 
ed me  some  questions  about  the  rigging.  I 
>came  down  on  deck,  leaving  him  in  the  top. 
A  short  time  after  I  discovered  Green  in  the 
top  with  Spencer.  I  ordered  him  down  ;  I 
was  mustering  the  men  with  their  hammocks 
in  the  netting  and  found  Mr.  Spencer  on  the 
Jacob's  ladder  ;  he  had  come  down  from  the 
top ;  I  turned  my  eyes  up  toward  him  arid 
met  his  look  ;  he  kept  staring  at  me  for  near 
a  minute  with  the  most  infernal  expression 
I  have  ever  beheld  on  a  human  face  ;  it  sat- 
isfied me  of  his  guilt.  I  reported  this  cir- 
cumstance to  the  commander,  and  advised 
ihat  something  might  be  done  to  secure  him  ; 
he  said  he  did  not  wish  to  do  anything  has- 
tily, he  would  wait  until  sundown  quarters  ; 
in  the  meantime  we  would  keep  a  good  look- 
out for  him.  A  short  time  before  quarters, 
the  commander  asked  me  what  I  would  do 
with  Mr.  Spencer,  if  I  were  in  his  situation 
as  commander  of  the  vessel.  I  told  him  I 
would  bring  him  aft,  iron  him,  and  keep  him 
on  the  quarter-deck.  He  said  tha.t  was  his 
intention,  and  he  was  very  glad  I  agreed 
with  him.  After  the  reports  were  made, 
all  the  officers,  excepting  Mr.  Hays,  were 
ordered  aft  on  the  quarter-deck ;  we  were 
at  quarters  at  this  time.  The  officers  being 
aft,  the  commander  said  to  Mr.  Spencer,  "I 
understand  you  aspire  to  the  command  of 
this  vessel ;  how  you  are  to  arrive  at  it  I 
can't  tell,  unless  by  walking  over  my  dead 
body  and  those  of  my  officers."  He  said  "  It 


officers.  I  put  the  hand  irons  on  him,  and 
asked  him  if  he  had  any  concealed  weapons 
about  him.  He  said,  "  No,  but  that  I  had 
better  overhaul  him,  he  supposed,  as  I  would 
not  believe  anything  he  might  say  now."  I 
did  so,  but  found  nothing  but  some  scraps 
of  paper  and  part  of  an  old  pipe.  The  feet 
irons  were  then  put  on,  and  he  was  put  on 
the  larboard  side  of  the  quarter-deck,  by  the 
order  of  the  commander.  I  armed  the  offi- 
cer of  the  deck  and  the  officer  of  the  fore- 
castle, with  orders  if  they  saw  Mr.  Spencer 
forward  of  the  mainmast,  or  communicating 
with  the  crew,  to  put  him  to  death. 

Q.  Be  pleased  to  state  all  you  know  of 
what  occurred,  from  the  discovery  of  the 
mutiny  until  the  execution  of  the  three  wig- 
leaders. 

A.  The  maintop-gallant-mast  was  carried 
away  on  the  27th  Nov.,  I  think ;  that  even- 
ing Cromwell  and  Small  were  confined ; 
Mr.  Spencer  sent  for  me.  and  asked  if  Crom- 
well was  confined  about  any  connexion  that 
he  might  have  with  him.  I  told  him  he 
was.  He  said  he  was  innocent ;  he  did  not 
think  Cromwell  would  join  him  unless  there 
was  money  on  board,  or  words  to  that  effect. 
It  was  my  impression  that  he  was  very 
anxious  to  have  him  released. 

During  the  time  of  his  confinement  he 
told  me  he  wished  to  have  a  conversation 
with  me  ;  I  am  not  positive  as  to  date — I 
think  about  the  27th  or  28th.  I  told  him  I 
was  ready  at  the  time  ;  he  said  he  was  not 
in  a  proper  state  of  mind  then  ;  I  asked  him 
"  if  he  would  send  for  me  when  he  was." 
I  think  this  was  on  the  28th — I  am  not  pos- 
itive. Next  morning,  about  ten  o'clock,  I 
asked  him  "  if  he  was  ready  to  have  that 
conversation ;"  he  said  he  had  had  this  plot 
on  board  of  every  vessel  he  had  been  in ; 


I 


NAVAL  COURT  MARTIAL. 


33 


had  it  in  the  Potomac  and  John  Adams  ;  but 
he  had  never  got  as  far  with  it  as  he  had 
on  board  the  Somers ;  he  said  he  knew  it 
would  get  him  into  trouble  ;  he  had  thought 
over  it  in  the  steerage  and  had  tried  to 
break  himself  of  it,  but  could  not  ;  he 
thought  it  was  a  mania  with  him.  1  think 
it  was  on*the*~29th  or  30th  that T had  a  con- 
versation with  Small ;  I  said  to  Small,  "  You 
see  we  have  taken  more  prisoners,"  and 
asked  if  there  were  any  forward  from  whom 
we  might  apprehend  danger ;  he  said  that 
was  a  hard  thing  for  him  to  say.  I  asked 
him  "  if  Cromwell  was  not  engaged  in  this 
plot  with  Mr.  Spencer ;"  he  said  it  was  a 
hard  thing  for  him  to  say  ;  "  that  they  were 
very  intimate  together,  and  he  had  seen 
him  give  him  money ;  that  he  would  like 
to  give  him  or  lend  him  either."  I  said  to 
him,  "  That  is  not  the  thing  ;  I  want  a  plain 
answer  to  a  plain  question — Is  not  Crom- 
well deeply  engaged  with  Mr.  Spencer  to 
take  the  vessel  out  of  the  hands  of  her  offi- 
cers ?"  His  reply  was,  "  If  any  one  on 
board  is,  he  is."  I  said,  "  I  thought  so." 
I  waited  there  a  short  time ;  he  made  no 
further  reply.  When  the  maintop  gallant 
mast  was  carried  away,  there  were %  some 
men  who  went  aloft  out  of  their  stations — 
among  them  were  Cromwell,  Wilson,  Ged- 
ney,  and  some  others,  whose  names  I  do 
not  recollect;  they  did  not  appear  to  go 
there  to  do  their  duty,  but  appeared  to  go 
there  for  the  purpose  of  conversing,  with 
the  exception  of  Gedney,  who  was  doing 
his  duty  clearing  the  wreck.  Cromwell 
was  unusually  a  noisy  and  boisterous  man 
on  occasions  of  this  sort,  but  on  this^cca- 
sion  he  said  nothing  that  I  heard,  and 
I  did  not  see  him  doing  anything  that  I 
recollect.  I  think  on  the  30ch  a  letter  was 
addressed  by  the  commander  to  all  the 
officers  except  the  acting  midshipmen  ;  the 
following  is  a  true  copy  to  the  best  of  my 
belief : — 

"  U.  S.  BRIG  SOMERS,         > 
"  30th  November,  1842.  ] 
"  GENTLEMEN  :  The  time  has  arrived  when 
I  am  desirous  of  availing  myself  of  your 
counsel  in  the  responsible  position  in  which, 
as  commander  of  this  vessel,  I  feel  myself 
placed.     You  are  aware  of  the  circumstan- 
ces which  have  resulted  in  the  confinement 
of  Acting  Midshipman  P.  Spencer,  Boat- 
swain's Mate   S.   Cromwell,  and   Seaman 
5 


Elisha  Small,  as  prisoners  ;  and  I  purpose- 
ly abstain  from  entering  into  any  detail  of 
them. 

"  Necessarily  ignorant  of  the  exact  ex- 
tent of  disaffection  among  a  crew  which  has 
been  so  long,  so  systematically,  and  so  as- 
siduously, tampered  with  by  an  officer ; 
knowing  that  suspicions  of  the  gravest  na- 
ture attach  to  persons  still  at  large  ;  and 
when  the  difficulty  of  taking  care  of  the 
prisoners  we  already  have,  makes  me  more 
reluctant  than  I  should  otherwise  be  to  ap- 
prehend ;  I  have  determined  to  address 
myself  to  you,  and  to  ask  your  united  coun- 
sel as  to  the  best  course  to  be  pursued  ;  and 
I  call  upon  you  to  take  into  deliberate  and 
dispassionate  consideration  the  present  con- 
dition of  the  vessel,  and  the  contingencies 
of  every  nature  that  the  future  may  embrace, 
throughout  the  remainder  of  our  cruise,  and 
enlighten  me  with  your  opinion  as  to  the 
best  course  to  be  now  pursued. 

"  I  am  very  respectfully,  gentlemen,  your 
most  obedient, 

"  ALEX'R  SLIDELL  MACKENZIE, 

"  Commander  U.  S.  Navy. 
"  Lieut.  Guest  Gansevoort,  Passed  Assis't 

Surgeon   R.  W.  L^cfock,  Purser  H.  M. 

Heiskill,   Acting    Master  M.   C.   Perry, 

Midshipman  Henry  Rogers,  Midshipman 

Egant  Thompson,   Midshipman  Charles 

W.  Hays,  U.  S.  Navy." 

The  accused  proposing  to  introduce  some 
paper  evidence,  the  testimony  of  Lieutenant 
Gansevoort  was  read  over  to  him,  and  cor- 
rected by  him. 

The  court  then  decided  to  adjourn,  to 
give  the  accused  opportunity  to  make  a  copy 
of  the  paper  proposed  for  evidence,  the 
originals  having  been  offered  in  testimony 
before  the  court  of  inquiry  into  the  alleged 
mutiny  on  board  the  Somers. 

The  judge  advocate  read  the  following 
letter : — 

"  NAVY  DEPARTMENT,      ) 
"  February  6,  1843.  $ 

"  SIR  :  Your  letter  of  the  3d  instant,  re- 
questing permission  to  change  the  sittings 
of  the  court  from  the  North  Carolina  to 
some  building  in  the  yard,  has  been  re- 
ceived. 

"  You  are  at  liberty  to  alter  the  sittings 
of  the  court  as  you  desire.  Captain  Perry 


34 


PROCEEDINGS  OF  THE 


has  been  directed  to  prepare  a  room  for  the 
use  of  the  court. 

"  I  am,  very  respectfully,  your  ob't  servt, 

"  A.  P.  UPSHUR. 
"  Commodore  John  Downes,  Presd't  Naval 

Gen'l  Court  Martial,  New  York." 

The  Court  then  adjourned  until  to-mor- 
row at  10  o'clock,  to  meet  in  the  chapel  in 
the  navy  yard. 


NAVY  YARD,        > 
Brooklyn,  Feb.  11,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read, 
"       Bolton, 
Turner, 
Sloat, 
Smith, 
Storer, 


Page, 

"       Gwinn, 
"       Wyman, 
Com'dr  Ogden, 
"       Shubrick, 

Members; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

The  letter  of  Commander  Mackenzie  to 
his  officers,  and  their  reply,  and  the  testi- 
mony taken  before  the  council  of  officers, 
were  offered.  The  judge  advocate  objected 
to  the  reception  of  the  letters,  except  for 
the  purpose  of  repelling  malice  in  fact,  and 
to  the  reception  of  the  testimony  before  the 
council  of  officers  for  any  purpose,  more 
especially  as  no  testimony  had  been  given 
that  Commander  Mackenzie  had  read  it  be- 
fore the  execution  and  filed  his  reasons. 

The  court  being  cleared,  on  the  opening 
thereof  the  judge  advocate  announced  that 
the  court  had  decided  that  the  letters  should 
be  received  generally,  but  that  the  testi- 
mony before  the  council  of  officers  was  not 
admissible. 

It  will  be  remembered,  that  at  the  outset 
of  this  case,  I  announced  that  an  important 
point  was  foreseen  for  the  examination,  of 
which  time  and  books  would  be  wanted. 
We  yesterday  reached  that  point  when  we 
came  to  the  declaration  of  Small  in  respect 
to  Cromwell,  in  the  conversation  with  Lieut. 
Gansevoort ;  and  it  is  again  renewed  by  the 
offer  of  the  letter  of  Commander  Mackenzie 
to  his  officers,  and  their  reply,  and  the  tes- 
timony taken  before  the  council  of  officers. 


As  a  record  it  would  not  at  all  be  admissi- 
ble against  Mr.  Spencer,  Cromwell,  and 
Small,  were  they  now  alive.  It  is  not  the 
proceedings  of  a  lawful  court. 

As  evidence  to  show  the  guilt  of  any  of 
the  parties  and  their  connexion,  it  is  whol- 
ly unallowable  ;  an  investigation  document 
is  wholly  unknown  to  the  law,  and  it  can  not 
be  pretended  that  it  is  the  record  of  these 
trials.  Trials,  as  such,  Commander  Mac- 
kenzie had  no  right  to  institute,  the  law  con- 
fining that  privilege  to  higher  officers  than 
the  commander  of  a  single  ship.  Placed, 
however,  in  a  position  of  responsibility,  with 
the  most  mighty  duties  to  perform,  by  virtue 
of  the  act  of  Congress  allowing  the  Presi- 
dent to  man  and  officer  the  ships-of-war  at 
his  discretion,  and  send  them  abroad  singly 
or  in  squadrons,  as  he  may  see  fit,  it  can 
not  be  pretended  that,  by  being  placed  out 
of  the  reach  of  the  composite  materials  for 
a  court  martial,  his  hands  are  tied,  and  that 
he  must  endure  mutiny  and  murder  without 
any  powers  of  counteraction.  But  there  are 
rights  also  on  the  other  hand.  The  officer 
or  seaman  who  chances  to  be  in  a  single 
ship  is  not  without  prerogatives.  The  or- 
dinary care  and  prudence  of  a  man  of  rea- 
sonable judgment,  caution,  and  firmness, 
must  become  his  protection.  If  he  were 
attached  to  a  squadron,  he  would  be  enti- 
tled to  a  trial  before  a  court  martial,  and  the 
ratification  of  his  sentence  in  a  capital  case 
by  a  vote  of  two  thirds  of  the  court.  His 
connexion  with  a  single  ship  does  not  outlaw 
him.  Though  no  court  as  such  can  be  or- 
ganized, it  is  the  duty  of  prudence  and  or- 
dinary caution,  first,  to  bring  the  offenders, 
if  possible,  to  port,  where  the  privileges  of 
the  law  may  be  afforded  to  him ;  second,  if 
that  is  impossible,  to  afford  him  an  oppor- 
tunity to  hear  the  charge,  examine  the  tes- 
timony, and  confront  the  witnesses  ;  and  a 
most  serious  and  overwhelming  necessity 
would  needs  have  to  be  shown  to  dispense 
with  this  due  care. 

Malice  is  of  two  kinds  :  malice  in  fact ; 
second,  malice  in  law.  Malice  in  fact  is 
that  evil  and  malignant  spirit  which  does  a 
bad  action  from  an  ill  intention. 

"  There  is  another,  and  that  a  large  class, 
where  the  question  of  intention  is  no  way 
material  so  long  as  the  act  is  voluntarily 
done." 

In  reference  to  such  cases  the  distinction 
of  malice  in  law  has  originated. 


NAVAL  COURT  MARTIAL. 


35 


Justice  Buller  has  explained  it  in  a  few 
words  in  Bromage  v.  Prosser,  in  10,  Eng. 
Com.  Law,  Rep.  255,  where  he  says, 
"  Malice,  in  common  acceptation,  means  ill 
will  against  a  person  ;  but  in  its  legal  sense 
it  means  a  wrongful  act  done  intentionally." 
The  whole  law  has  been  thoroughly  col- 
lected by  Lord  Ellenborough  in  Rex  v. 
Pictou,  30  Howel  street  Trials  489,  estab- 
lishing that  the  commission  of  a  wrongful 
act  even  on  the  best  advice  does  not  entitle 
the  party  to  an  acquittal,  because  ignorance 
or  intention  are  not  to  be  allowed  to  do 
away  with  the  rights  of  others. 

To  prevent  undue  want  of  caution  in  fu- 
ture, the  public  law  holds  the  most  honest, 
patriotic,  and  well-intentioned  persons  liable 
for  wrongful  acts,  however  bona  fide  done. 

With  these  notions,  I  am  constrained  by 
decisions  to  think  the  testimony  only  ad- 
missible to  repel  malice  in  fact,  but  not 
malice  in  law,  unless  it  is  followed  up  by 
testimony  to  show  that  it  was  impracticable 
at  the  investigation  to  allow  Mr.  Spencer, 
Cromwell,  and  Small,  the  opportunity  of 
presence,  cross-examination,  and  the  other 
usual  advantages  of  a  formal  trial,  and  that 
the  execution  was  indispensably  necessary, 
when  it  took  place,  for  the  purpose  of  safety 
to  the  vessel  or  maintenance  of  command, 
or  that  the  guilt  of  Mr.  Spencer,  Cromwell, 
and  Small,  is  now  legally  established  by 
competent  evidence.  To  omit  this,  is  to 
fall  short  of  the  ordinary  caution  ;  and  then 
to  allow  one  to  appeal  to  one  wrongful  act 
to  defend  himself  against  the  consequences 
of  another,  would  be  a  perversion  of  sense 
and  legal  principles.  This  is  my  stern  du- 
ty according  to  my  apprehension  of  the  law. 

I  desire  thus  to  notify  these  views,  that 
the  counsel  of  the  accused  may  contest  and 
impeach  them  in  his  defence.  I  admit  that 
the  government  at  sea  must  of  propriety  be 
more  summary  than  on  land,  and  claim 
more  allowances. 

WILLIAM  H.  NORRIS, 

Judge  Advocate. 

Commander  Mackenzie  then  presented 
the  letter  from  the  council  of  officers  to 
him,  which  was  read  by  the  judge  advocate, 
as  follows  : — 

"U.  S.  BRIG  SOMERS, 

"December  1,  1842. 
"  SIR  :  In  answer  to  your  letter  of  yester- 
day requesting  our  counsel  as  to  the  best 


course  to  be  pursued  with  the  prisoners, 
Acting  Midshipman  Philip  Spencer,  Boat- 
swain's Mate  Samuel  Cromwell,  and  Sea- 
man Elisha  Small,  we  would  state,  the 
evidence  which  has  come  to  our  knowledge 
is  of  such  a  nature,  that,  after  as  dispas- 
sionate and  deliberate  a  consideration  of  the 
cases  as  the  exigency  of  the  time  would 
admit,  we  have  come  to  a  cool,  decided,  and 
unanimous  opinion,  that  they  have  been 
guilty  of  a  full  and  determined  intention  10 
commit  a  mutiny  on  board  of  this  vessel  of 
a  most  atrocious  nature,  and  that  the  reve- 
lation of  circumstances  having  made  it 
necessary  to  confine  others  with  them  ;  the 
uncertainty  as  to  what  extent  they  are 
leagued  with  others,  still  at  large  ;  the  im- 
possibility of  guarding  against  the  cgntm* 
gencies  which  zTclay  or  an  hour  may  bring 
forth,  Ve  are  convinced  that  it  would  be 
impossible  to  carry  them  to  the  United 
States ;  and  that  the  safety  of  the  public 
property,  the  lives  of  ourselves  and  of  those 
committed  to  our  charge,  requires,  that 
(giving  them  sufficient  time  to  prepare)  they 
should  be  put  to  death,  in  a  manner  best 
calculates  as" an  example  to  make  a  bene- 
ficial impression  upon  tHe  disaffected. 

"  This  opinion  we  give,  bearing  in  mind 
our  duty  to  our  God,  our  country,  and  to  the 
service. 

"  We  are,  sir,  very  respectfully,  your 
obedient  servants, 

"  GUEST  GANSEVOORT,  Lieutenant, 
"  R.  W.  LEECOCK,  P.  Assist.  Surgeon, 
"  H.  M.  HEISKILL,  Purser, 
"  M.  C.  PERRY,  Act' g  Master, 
"HENRY  ROGERS,  Midshipman, 
"  EGBERT  THOMPSON,  Midshipman, 
"  CHAS.  W.  HAYS,  Midshipman. 
"  Comm'r  ALEX.  SLIDELL  MACKENZIE, 
"  U.  S.  Brig  Sowers." 

Lieut.  Gansevoort  recalled. 

EXAMINED   BY  COMMANDER    MACKENZIE. 

Q.  What  was  the  course  pursued  by 
yourself  and  the  other  officers,  after  the  re- 
ceipt of  the  letter  of  Commander  Macken- 
zie, to  which  you  have  testified  ? 

A.  We  formed  ourselves  into  a  council 
and  examined  the  witnesses  ;  the  result  of 
this  examination  was  a  letter  to  the  com- 
mander, of  which  the  one  shown  me  is  a 
true  copy  to  the  best  of  my  knowledge  and 
belief. 


36 


PROCEEDINGS  OF  THE 


Q.  How  long  were  you  in  deliberation, 
and  how  many  witnesses  did  you  examine  ? 

A.  I  think  we  met  at  nine  o'clock  first 
day  and  broke  up  at  six,  P.  M.,  and  a  short 
time  the  next  day.  I  don't  know  how  long  ; 
there  were  thirteen  examined ;  I  was  not 
present  at  the  examination  of  all ;  my  duties 
on  deck  prevented  my  attending  all  the  time. 

Q.  Were  the*  depositions  of  the  persons 
examined  reduced  to  writing,  and  were  they 
submitted  to  Commander  Mackenzie  ? 

A.  Yes,  sir  ;  they  were  reduced  to  wri- 
ting and  shown  the  commander ;  I  ordered 
Purser  Heiskill  to  do  so  ;  he  disappeared 
and  returned,  and  told  me  he  had  done  so. 

Q.  Were  any  of  the  crew  present  when 
Mr.  Spencer  was  arrested,  or  was  the  con- 
versation overheard  by  the  officers  only  ? 

A.  The  crew  were  at  quarters,  the  offi- 
cers were  about  Mr.  Spencer  ;  I  don't  think 
the  crew  heard  what  was  said ;  the  com- 
mander sent  the  master  to  the  wheel,  and 
the  man  stationed  there  forward ;  the  offi- 
cers, with  the  exception  of  Mr.  Hays,  were 
all  aft. 

Q.  Did  you  on  that  evening  communicate 
the  cause  of  Mr.  Spencer's  arrest,  to  any 
of  the  petty  officers  or  any  of  the  crew  ? 

A.  I  think  I  did — King,  I  think,  and 
Dickinson  ;  I  believe  it  was  on  that  evening 
that  I  ordered  all  the  petty  officers  aft,  and 
asked  "  if  Mr.  Spencer  had  ever  disclosed 
his  plot  to  them  ;"  I  am  not  positive  as  to 
the  time  :  I  think  it  was  more  than  an  hour 
after  Mr.  Spencer's  arrest;  it  was  late,  be- 
fore dark. 

Q.  Do' you  know  anything  of  a  written 
plan  of  mutiny  in  strange  characters  ?  if  so, 
state  what  you  know  on  this  subject. 

A.  I  know  there  was  one  found  in  Mr. 
Spencer's  locker  the  evening  he  was  con- 
fined ;  I  overhauled  his  locker  for  the  pur- 
pose of  finding  it ;  I  found  a  looking-glass 
case,  and  inside  of  it  a  drawer  ;  in  this 
drawer  was  a  razor  case,  and  in  this  razor 
case  was  a  written  paper,  wrapped  up  in 
common  brown  oil  paper ;  the  case  shown 
me  I  believe  to  bo  the  case — it  was  a  simi- 
lar one. 

Q.  Are  the  papers  now  produced  the  pa- 
pers found  by  you  on  that  occasion  ? 

A.  I  believe  them  to  be  the  same  ;  there 
were  two  papers. 

Q.  Had  you  any  conversation  with  Mr. 
Spencer  with  regard  to  the  papers  found  in 
the  razor  case  ?  and,  if  so,  what  was  it  ? 


A.  I  think  it  was  on  the  29th  or  30th,  I 
told  him  those  papers  had  been  found ;  he 
said,  "  I  suppose  so  ;"  I  showed  them  to 
him,  and  asked  him  if  he  would  translate 
them,  and  he  did  so ;  Mr.  De  Londe  took 
it  down  in  pencil  mark,  and  I  held  the 
original  papers  ;  he  wished  me  to  hand 
them  to  him,  but  I  would  not  do  it ;  I  recol- 
lect nothing  farther  at  this  time,  more  than, 
before  he  was  confined,  I  think  he  men- 
tioned to  me  that  had  an  alphabet  which 
nobody  could  read  but  himself  and  two 
others,  and  stated  he  had  invented  it  while 
at  college  ;  when  I  showed  him  this  paper, 
I  pointed  to  some  strange  characters  on  it 
and  asked  him  if  those  were  a  part  of  the 
alphabet  he  had  invented  ;  he  said  "  yes," 
I  think. 

Q.  Had  you  any  conversation  with  Mr. 

:  Spencer  at  this  time  about  the  name  of  E. 

I  Andrews,  which  appeared  in  the  list  of  the 

•  certain  next  his  own  ?  if  so,  state  the  same. 

A.  Yes,  sir;    I  asked  him  if  that  name 

|  did   not  stand  for   Cromwell ;   he  said  no, 

!  that  it  meant  Small — that  was  his  real  name ; 

;  I  said,  "  Ah !  how  is  that,  whdn  you  have 

I  Small's  name  twice  on  the  list?"  the  paper 

j  had  been  translated  before  by  Mr.  Rogers, 

j  and  I   knew  where   Small's   name  was ;  I 

!  pointed  to  Small's  name  in  two  places,  when 

Mr.  Spencer  appeared  to  be  surprised,  and 

said,  "  Ah !  I  did  not  know  I  had  written 

it  in  that  way." 

Q.  Did  Mr.  Spencer  dictate  what  Mr. 
De  Londe  wrote  down  ?  and  did  Mr.  Spen- 
cer admit  it,  when  written  down,  to  be 
correct  ? 

A.  Mr.  Spencer  did  dictate,  it  was  writ- 
ten down  ;    I  am  not  positive   whether  it 
,  was  read  to  him,  but  was  taken  down  by 
Mr.  De   Londe   as  it  was  read  off  by  Mr. 
I  Spencer. 

Q.  Did  or  did  not  the  translation  made 
|  by  Mr.  De  Londe  under  the  dictation  of 
I  Mr.  Spencer  correspond  exactly  with  one 
!  made  previously  by  Midshipman  Rogers  ? 

A.  I  believe  it  did  with  the  exception  of 
I  one  name,  which  he  said  he  (Mr.  Spencer) 
|  could  not  make  out,  but  told  me  he  would 
:  perhaps  recollect  it  some  future  time. 

Q.  Was  there  any  person  on  board  the 
I  Somers  by  the  name  of  E.  Andrews? 
A.  None  that  I  know  of. 
A  letter  found  in  the  bible  of  Small  was 
then    offered   in    evidence,    to   prove   that 
"  Small"  was  his  genuine  name. 


NAYAL  COURT  MARTIAL. 


37 


The  judge  advocate  objected  to  its  recep- 
tion. The  court  was  cleared,  and  on  the 
opening  thereof  the  judge  advocate  an- 
nounced that  the  court  had  decided  that  the 
letter  was  inadmissible,  not  being  authenti- 
cated. 

Q.  Was  there  or  was  there  not  an  addi- 
tional paper  in  the  razor  case  ?  inside  the 
two  ?  and  is  the  one  shown  you  it  ? 

A.  There  was  a  small  paper,  I  believe 
that  to  be  the  one. 

Q.  What  names  are  on  the  paper  ?  are 
they  names  of  any  persons  who  were  on 
board  the  Somers  ? 

A.  Geo.  A.  Brest,  Frederick  Wells,  and 
Edward  Roberts  ;  I  don't  know  of  any  such 
persons  on  board  the  Somers. 

Q.  Do  you  remember  whether,  on  the 
day  following  the  arrest  of  Mr.  Spencer, 
the  maintop-gallantmast  was  carried  away  ? 
were  you  on  deck  at  the  time  ? 

A.  I  remember  that  it  was  carried  away, 
but  I  was  not  on  deck  at  the  time  ;  I  was 
in  the  ward-room. 

Q.  Did,  or  did  not,  the  whole  crew  rush 
aft  on  that  occasion,  in  such  a  tumultuous 
manner  as  to  excite  your  suspicion  ?  what 
was  the  impression  made  on  the  mind  of 
the  commander  and  officers  ?  state  all  the 
circumstances  relating  thereto. 

A.  I  heard  a  movement  on  deck  ;  looked 
up  the  hatch,  and  found  that  the  maintop- 
gallantmast  was  gone ;  went  on  deck,  and 
the  commander  ordered  me  to  take  charge 
of  the  deck.  The  rush  took  place  when 
the  mast  was  pointed,  or  about  to  be  swayed 
from  the  deck.  The  commander  and  my- 
self were  standing  on  the  larboard  side  of 
the  quarter-deck,  at  the  after  end  of  the 
trunk ;  we  were  in  conversation  ;  it  was 
dark  at  this  time.  I  heard  an  unusual  noise 
— a  rushing  on  deck,  and  saw  a  body  of 
men  in  each  gangway  rushing  aft  toward  ! 
the  quarter-deck ;  I  said  to  the  commander,  I 
"  God,  I  believe  they  are  coming."  I  had  ! 
one  of  Colt's  pistols,  which  I  immediately  ' 
drew  and  cocked ;  the  commander  said  his 
pistols  were  below  ;  I  jumped  on  the  trunk, 
and  ran  forward  to  meet  them  ;  as  I  was 
going  along  I  sung  out  to  them  not  to  come 
aft.  I  told  them  I  would  blow  the  first  man's 
brains  out  who  would  put  his  foot  on  the 
quarter-deck ;  I  held  my  pistol  pointed  at 
the  tallest  man  I  saw  in  the  starboard  gang- 
way, and  I  think  Mr.  Rogers  sung  out  to 
me,  that  he  was  sending  the  men  aft  to  the 


mast-rope.  I  then  told  them  they  must  have 
no  such  unusual  movements  on  board  the 
vessel ;  what  they  did,  they  must  do  in  their 
usual  manner ;  they  knew  the  state  of  the 
vessel,  and  might  get  their  brains  blown  out 
before  they  were  aware  of  it ;  some  other 
short  remarks,  I  do  not  recollect  at  this  time 
what  they  were,  and  ordered  them  to  come 
aft  and  man  the  mast-rope  ;  to  move  quietly. 
The  gangways  were  full  on  both  sides ;  it 
was  dark. 

Q.  Was,  or  was  not,  the  conduct  of  the 
crew  on  this  occasion  wholly  unusual  ?  had 
you  ever  known  the  crew  to  obey  a  general 
order  in  the  same  manner  before  ? 

A.  The  conduct  was  unusual,  and  I  never 
knew  them  to  act  in  that  way  before. 

Q.  Did,  or  did  not,  the  crew  tramp  vio- 
lently in  coming  aft  ? 

A.  They  did. 

Q.  How  long  was  the  commander  in  get- 
ing  his  arms,  and  reaching  the  break  of  the 
quarter-deck  ? 

A.  I  turned  round  to  look  aft,  as  soon  as 
I  heard  Mr.  Rogers's  voice,  and  saw  the 
commander  abaft  me,  on  the  quarter-deck, 
and  abaft  the  after  gun.  I  believe,  I  am 
not  positive,  he  was  abaft  of  me,  and  I  think 
abaft  the  after  gun. 

Q.  Did  you  distinguish  any  particular  in- 
dividuals among  those  who  rushed  aft  ? 

A.  I  am  not  positive,  but  I  think  this  tall 
man  was  Wilson. 

Q.  What  was  the  state  of  discipline  and 
subordination  of  the  crew  of  the  Somers, 
during  the  first  part  of  her  cruise,  arid  until 
her  arrival  at  Madeira  ? 

A.  I  considered  it  good. 

Q.  Did  you,  or  did  you  not,  afterward 
observe  a  change  in  the  conduct  and  deport- 
ment of  the  crew  ?  if  so,  at  what  time  did 
this  change  begin,  and  in  what  manner  did 
it  show  itself? 

A.  After  our  arrival  at  Madeira,  and  up> 
to  the  time  of  the  execution,  I  observed  a 
change — a  neglect  to  obey  small  orders, 
sullenness,  a  change  in  the  manner  of  a 
ship's  company,  which  is  easily  observed 
by  one  who  understands  the  character  of 
seamen  on  board  of  a  vessel. 

Q.  Did,  or  did  not,  this  insubordination 
of  the  crew  continue  to  increase  until  the 
day  that  Mr.  Spencer  was  arrested  ? 

A.  I  think  it  did. 

Q.  Did,  or  did  not  the  disorderly  conduct 
of  the  crew  make  such  an  impression  on 


38 


PROCEEDINGS  OF  THE 


your  mind,  that  when  informed  of  the  mu- 
tiny, you  at  once  considered  it  as  explain- 
ing the  facts  for  which  you  were  before 
unable  to  account  ? 

A.  It  did. 

Q.  What  was  the  conduct  and  deport- 
ment of  the  crew  after  the  arrest  of  Mr. 
Spencer  ?  did  any  portion  of  them  appear 
discontented  and  disaffected  ?  did  you  ob- 
serve any  secret  conferences  among  them  ? 
were  they  slow  and  reluctant  in  performing 
their  duty,  and  gloomy  and  sullen  in  their 
looks,  or  cheerful,  prompt,  and  active  ? 

A.  The  conduct  of  the  crew,  after  the 
arrest  of  Mr.  Spencer,  was  sullen  and  in- 
subordinate ;  a  large  portion  to  my  mind  ap- 
peared disaffected;  I  observed  them  grouped 
together,  talking  in  a  low  tone  ;  when  I 
would  come  near  them,  they  would  raise 
their  voices  and  change  the  conversation 
apparently,  or  stop  talking  altogether ;  they 
would  sometimes  separate.  They  were  re- 
luctant in  performing  their  duty,  slow  in 
their  motions,  sullen  and  disrespectful  in 
their  manner. 

The  evidence  of  Lieut.  Gansevoort  was 
here  suspended,  his  evidence  was  then  read 
to  him  and  corrected  by  him. 

The  Court  then  adjourned  to  Monday, 
Feb.  13,  at  10  o'clock,  A.M. 


NAVY  YARD,          > 
Brooklyn,  Feb.  13,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Dovvnes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner;  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Smith,  "       Shubrick, 

"       Storer,  Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Lieut.  Gansevoort  recalled. 

EXAMINED    BY    COMMANDER    MACKENZIE. 

Q.  What  portion  of  the  officers  were 
armed  at  the  time  the  crew  came  tramping 
aft  in  the  disorderly  manner  you  have  de- 
scribed ? 

-A.  The  officer  of  the  deck,  the  officer  of 


the  forecastle,  the  commander  had  a  pair  of 
pistols  in  his  cabin,  which  he  brought  up 
immediately,  and  I  had  one  of  Colt's  pistols. 
Q.  Immediately  after  this  disorderly  act, 
what  further  measures  were  taken  for  the 
security  of  the  vessel  ? 

A.  The  remainder  of  the  officers  were 
armed,  and  I  think  the  sergeant  of  marines 
was  armed  at  the  same  time. 

Q.  Did  you  subsequently  relinquish  your 
repeating  pistol  to  the  commander,  and  did 
he  subsequently  go  perpetually  armed  ? 

A.  I  think  it  was  the  next  morning  that  I 
insisted  on  his  taking  it,  and  he  wore  it  from 
that  time  to  our  arrival  in  here. 

Q.  What  orders  were  given  the  officers, 
at  the  time  they  were  armed,  with  regard  to 
their  arms  ? 

A.  To  have  a  general  look-out  on  the 
crew  ;  if  they  saw  Mr.  Spencer  communi- 
cating with  any  of  the  crew,  to  use  their 
weapons  upon  him  and  those  who  were 
communicating  with  him.  They  were  sta- 
tioned around  the  main-mast  and  in  different 
parts  of  the  deck,  previous  to  Cromwell 
coming  on  the  deck,  with  orders  to  prevent 
the  crew  from  coming  aft  and  preventing  the 
arrest  of  Cromwell,  and  also  to  look  out  that 
he  did  not  get  forward  among  the  crew. 

Q.  What  were  the  orders  given  to  the  of- 
ficers in  the  event  of  an  attack,  or  attempt 
at  res;  cue  ? 

A.  I  believe  the  orders  were  to  put  those 
making  the  attack,  and  the  prisoners,  to 
d«.'dth  ;  I  am  not  positive. 

Q.  What  orders  were  given  to  the  offi- 
cers, with  regard  to  the  care  and  safety  of 
tiieir  arms  ? 

A.  They  were  to  be  careful  that  their 
arms  were  not  taken  from  them  by  the  crew 
(this  was  particularly  to  the  younger  offi- 
cers), and  to  be  careful  no  accident  occurred 
with  them. 

Q.  Was  there,  or  was  there  not  an  order 
that  any  neglect  or  parting  from  their  arms, 
on  the  part  of  an  officer,  was  to  be  entered 
in  the  log-book,  and  reported  to  the  secre- 
tary of  the  navy  ? 

A.  I  received  that  order  from  the  com- 
mander, and  passed  it  to  the  officers. 

Q.  Do  you  know  anything  of  the  com- 
mander addressing  the  crew,  the  morning 
after  the  arrest  of  Cromwell  and  Small  ?  If 
so,  do  you,  or  do  you  not  know  whether  the 
commander  studiously  endeavored  to  avoid 
exciting  suspicions  in  the  minds  of  any  who 


NAVAL  COURT  MARTIAL. 


39 


were  involved  in  Mr.  Spencer's  plot,  that 
their  participation  in  it  was  either  known  or 
suspected  ? 

A.  He  did  address  the  crew ;  I  think  it 
was  after  Waltham  was  punished  ;  I  think 
it  was  before  all  hands  were  "  piped  down." 
I  think  he  endeavored  not  to  excite  the  sus- 
picions of  any  of  those  whom  he  did  not 
make  prisoners  at  once  ;  his  course  through- 
out was  to  do  this. 

Q.  What  was  the  character  of  the  ad- 
dress made  by  Commander  Mackenzie  to 
the  crew  ?  state  the  object  and  tendency 
according  to  your  recollection  ? 

A.  The  character  of  his  speech  was  that 
of  kindness  and  mildness,  and  for  the  purpose 
of  bringing  their  minds  back  to  the  proper 
situation,  if  they  had  been  influenced  by 
Mr.  Spencer ;  he  pictured  to  them  their 
homes  and  friends,  and  endeavored  to  show 
them,  that  even  if  they  did  succeed  in  this 
plot,  they  would  be  much  worse  off  than 
they  were  at  that  time — many  of  them  prob- 
ably would  be  thrown  overboard,  and  they 
had  everything  to  lose  and  nothing  to  gain  ; 
this  was  about  the  amount  of  it. 

Q.  Did  you,  or  did  you  not,  subsequently 
to  this  address,  agree  with  the  commander 
at  first,  in  believing  that  a  salutary  change 
had  been  produced  in  the  minds  of  the 
crew  ? 

A.  I  did  believe  it  had  a  good  effect  on 
some  of  the  crew. 

Q.  From  your  conversation  with  the  com- 
mander at  the  time,  did,  or  did  not  the  com- 
mander, at  this  time,  consider  all  the  really 
dangerous  men  in  custody  ?  did  he  not  con- 
sider the  crew  tranquillized,  and  the  vessel 


A.  I  think  he  did. 

Q.  Had  you,  or  had  you  not,  at  that  time, 
any  consultations  with  the  commander  as  to 
the  state  of  the  vessel,  and  condition  of  the 
crew  ?  if  so,  state  what  were  the  views  of 
the  commander. 

A.  We  had  a  conversation  about  the  state 
of  the  crew  ;  the  commander  did  not  wish 
the  crew  to  know  he  suspected  any  of  them, 
without  securing  them.  I  do  not  recollect 
at  this  time,  any  other  views  of  the  com- 
mander. 

Q.  Did  the  insubordination  of  the  crew 
diminish,  or  continually  increase,  from  this 
time  forward  until  the  execution  ? 

A.  It  did  increase  up  to  the  time  of  the 
execution. 


le  gang- 
bid  him 
iim,  and 
d  death, 


Q.  To  what  portion  of  the  crew  did  this 
insubordination  extend  ? 

A.  Two   thirds   or   three   quarters,  and 
among  the  older  part  of  the  crew. 

Q.  Do  you  know  what  passed  at  the  time 
of  the  execution  ?  if  so,  please  state  it. 

A.  Just  before  Mr.  Spencer  went  forward 
under  the  main  yard,  I  took  leave  of  him ; 
he  took  my  hand  in  both  of  his,  and  in  the 
most  earnest  manner  asked  me  to  forgive 
him  the  great  injuries  he  had  done  me ;  he 
said  he  deserved  to  be  punished,  that  he  did 
not  object  to  his  sentence ;  he  deserved  to 
die,  but  he  did  not  like  the  way  the  com- 
mander chose  to  put  him  to  death  ;  he  said  he 
should  like  to  have  had  a  little  longer  time  to 
prepare,  or  words  to  that  effect.     When  the 
prisoners  were  taken  forward  to  the  gang- 
way, Small  asked  me  if  I  would  bid 
"  good-by ;"  asked  me  to   forgive  him, 
said  he  was  guilty,  that  he  deserved 
or  words  to  that  effect.     The  commander 
said  to  him,  "  Small,  what  have  I  ever  done 
that  you  won't  bid  me  good-by  ?"     He   re- 
plied, "  I  didn't  know  that  you  would  bid  a 
poor  bugger  like  me  good-by."     The  com- 
mander then  said  he  was  very  sorry  he  was 
obliged  to  take  this  course,  but  the  honor  of 
the  flag  and  the  safety  of  the  crew  required 
it,  or   words  to  that  effect.      Small    said, 
"  Yes,  sir,  I  honor  you  for  it,  and  God  bless 
that  flag !"      It  appeared  to  affect  the  com- 
mander very  much  ;  I   crossed  over  to  the 
other  side  of  the  deck,  to  where  Cromwell 
was,  put  out  my  hand,  and  bid  him  good- 
by  ;  he   grasped  my  arm  very  firmly,   and 
held  it  tight ;  he  asked  me  to  forgive  him, 
and  bade  me  good-by,  said  he   was  inno- 
cent, and  hoped  that  before  six  months  we 
would  find  it  out ;  I  turned  my  arm  to  get 
clear  of  his  grasp,  but  he  held  on  to  me  ;  in 
a  few  moments  he  relaxed  his  hold,  and 
struck  his  hands  clear ;  I  had  an  idea  that 
he  meant  to  take  me  overboard  with  him ; 
I  then  went  over  in  the  starboard  gangway ; 
Mr.   Spencer  called  me  ;    he  said,  "  You 
may  have  heard  that  I  am  a  coward,  and 
you  yourself  may  think  that   I   am  not  a 
brave  man  ;  you  may  judge    for   yourself 
whether  I  die  like  a  coward  or  a  brave 
man."     I  think  Small  then  asked  permis- 
sion to  address  the  crew,  which  was  grant- 
ed ;  he  said,  "  Messmates  and  shipmates,  I 
am  no  pirate  ;  I  never  murdered  anybody." 
When  Small  had  got  this  far,  the  commander 
said  to  me,  "  Is  that  right  ?"  meaning,  as  I 


40 


PROCEEDINGS  OF  THE 


presumed,  ought  he  to  be  suffered  to  go  on  ; 
before  I  could  reply,  Small  went  on  and 
said,  "  It  is  only  because  I  said  I  would  ; 
now,  see  what  words  will  do  ;  take  warn- 
ing by  me  ;"  he  said  he  deserved  his  pun- 
ishment ;  he  did  not  object  to  it ;  this  is  all 
I  recollect,  at  this  time,  of  his  speech.  Mr. 
Spencer  had  asked  permission,to  give  the 
order  to  fire  the  gun  ;  Small  said  to  him, 
"  I  am  all  ready,  Mr.  Spencer."  Permis- 
sion had  been  granted  to  Mr.  Spencer  to 
give  the  order  ;  he  afterward  said  he  had 
not  the  power  to  give  the  order,  and  asked 
through  Browning,  the  boatswain's  mate, 
for  the  commander  to  give  the  order ;  I 
think  the  order  was,  "  Stand  by — fire  !"  I 
sung  out  "  Whip !"  The  men  were  run  up 
to  the  yard ;  the  whips  were  belayed,  and 
I  arn  not  sure  whether  it  was  the  order 
given  to  pipe  down  and  pipe  to  dinner  then, 
or  after  the  commander  addressed  them,  but 
they  did  not  go  below  until  after  he  had  ad- 
dressed them  ;  in  his  address  he  pictured 
the  character  of  these  men  who  were  suf- 
fering for  their  crimes,  and  the  honest  man 
who  did  his  duty ;  he  showed  to  them  how 
much  better  it  was  to  take  the  honest  and 
upright  course ;  he  stated,  that  probably 
Cromwell  was  brought  there  by  his  love  of 
money,  and  allowed  one  of  the  boatswain's 
mates,  Collins,  to  relate  a  circumstance 
which  had  occurred  on  board  a  merchant- 
man. After  this  speech  was  through,  the 
men  were  going  forward  to  dinner ;  the 
commander  asked  me  how  it  would  do  to 
give  three  cheers ;  I  told  him  I  thought  it 
would  do  well ;  when  the  men  came  aft,  he 
said,  "  My  lads,  three  cheers  to  the  Ameri- 
'  can  flag !"  they  gave  three  hearty  ones  ;  it 
appeared  to  relieve  the  minds  of  the  officers 
and  men  from  the  gloom  that  hung  about  us. 

Q.  When  the  three  cheers  were  given  to 
the  American  flag,  where  were  the  crew  ? 
on  what  part  of  the  deck  ?  which  way  were 
they  looking  ? 

A.  The  crew  were  on  the  quarter-deck, 
looking  aft,  the  commander  on  the  star- 
board side  of  the  after  part  of  the  trunk, 
and  I  on  the  larboard  side. 

Q.  What  feelings  were  uppermost  in  your 
heart  at  the  moment  of  those  cheers  to  the 
American  flag  ? 

A.  I  felt  like  an  officer  who  had  done  his 
duty  to  his  God  and  his  country. 

Q.  What  had  Cromwell  done  to  you,  he 
a  boatswain's  mate  and  you  a  lieutenant,  to 


make  him  so  earnestly  desire  your  forgive- 
ness, when  about  to  die  ? 

A,  I  don't  know,  unless  having  medita- 
ted taking  my  life  ;  I  always  treated  him 
more  kindly  than  he  deserved. 

Q.  Were  the  petty  officers  armed  previ- 
ous to  the  execution  ? 

A.  They  were. 

Q.  Did  Mr.  Spencer,  in  any  of  his  reve- 
lations subsequently  to  his  confinement,  re- 
veal to  you  any  fact  that  you  did  not  already 
know,  with  regard  to  the  mutiny  on  board 
the  Somers  ? 

A.  He  told  me  he  had  had  this  plot  on 
board  of  every  vessel  he  had  been  in ;  he 
revealed  notning  relative  to  the  mutiny  on 
board  the  Somers  which  I  did  not  know 
before  ;  he  translated  his  paper,  but  that  I 
knew  of  immediately  after  he  was  confined. 

Q.  Shortly  before  the  execution,  did  Mr, 
Spencer  or  did  he  not,  earnestly  entreat 
Small  to  forgive  him  ? 

A.  I  think,  after  the  commander  took 
leave  of  Small,  Mr.  Spencer  asked  him  if 
he  would  not  forgive  him ;  Small  replied, 
"  Ah,  Mr.  Spencer,  that  is  a  hard  thing  for 
me  to  do — you  brought  me  to  this;"  the 
commander  said,  "  Forgive  him,  Small — 
don't  go  out  of  the  world  with  any  bad  feel- 
ings at  your  heart ;"  I  believe  they  then 
shook  hands  ;  at  this  time  I  crossed  over  to 
the  other  side  of  the  deck. 

Q.  Is  it  or  is  it  not  your  belief,  from  what 
you  saw  of  the  manner  of  Small,  that  Small 
would  have  forgiven  Mr.  Spencer  but  for  the 
interference  of  the  commander  ? 

A.  I.  don't  think  he  would. 

Q.  Did  or  did  not  the  forgiveness  of  Small 
seem  to  be  anxiously  desired  by  Mr.  Spen- 
cer, and  did  he  or  did  he  not  seern  greatly 
relieved  by  receiving  this  forgiveness  ? 

A.  It  appeared  to  be  anxiously  desired 
by  Mr.  Spencer  ;  I  went  on  the  other  side 
of  the  deck,  I  think,  at  that  time. 

Q.  Did  you  receive  orders  from  the  com- 
mander to  attend  particularly  to  the  comfort 
of  Mr.  Spencer  and  the  other  prisoners,  and 
if  so,  were  those  orders  obeyed  ? 

A.  I  did  receive  repeated  orders  from  the 
commander  to  that  effect,  and  they  were 
obeyed  strictly,  I  believe. 

Q.  What  do  you  know  of  the  command- 
er's manner,  treatment,  and  conduct  toward 
Mr.  Spencer,  generally,  during  the  cruise, 
as  compared  with  his  treatment  of  the  other 
young  officers  ? 


NAVAL  COURT  MARTIAL. 


41 


A.  I  never  saw  any  difference  in  his 
treatment  toward  Mr.  Spencer  from  that 
shown  toward  the  other  officers. 

Q.  What  was  the  tone,  the  manner,  the 
demeanor  of  Commander  Mackenzie  toward 
Mr.  Spencer  immediately  before  the  execu- 
tion ?  was  it  harsh  or  was  it  sympathizing  ? 
was  it  courteous  or  was  it  disdainful  1 

A.  It  was  sympathizing,  courteous. 

Q.  Did  the  insubordination  of  the  crew, 
as  you  have  described  it,  continue  after  the  I 
execution,  or  did  a  change  then  take  place  ?  j 
If  so,  state  the  nature  of  the  change. 

A.  A  change  did  take  place  for  the  bet- 
ter ;  they  were  more  subordinate — more  at- 
tentive generally  ;  immediately  after  the  ex- 
ecution I  noticed  a  good  effect,  but  not  with 
some  ;  it  relieved  the  minds  of  the  crew 
generally  ;  after  we  left  St.  Thomas  I  think 
I  observed  a  bad  feeling  among  a  few  of  the 
older  part  of  the  crew,  whom  I  supposed  to 
be  implicated  before ;  the  most  of  those  I 
refer  to  are  now  in  irons,  or  confined  in  this 
building,  I  believe. 

Q.  From  what  you  observed  and  knew  of 
the  spirit  and  feelings  of  the  crew,  and  of 
the  progress  of  the  mutiny  up  to  the  time  of 
the  execution  of  the  ringleaders,  did  you 
then,  or  do  you  now,  believe  that  the  Somers 
could  or  could  not  have  been  safely  brought 
into  port,  unless  the  ringleaders  were  exe- 
cuted ? 

A.  I  did  believe  then,  and  do  believe  now, 
that  she  never  would  have  been  brought  into 
port  in  the  hands  of  her  officers,  without  the 
execution  of  those  three  men. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  When  did  you  first  suppose  it  would 
be  necessary  to  execute  Mr.  Spencer,  Crom- 
well, and  Small,  for  the  safety  of  the  vessel, 
officers,  and  crew  ? 

A.  When  we  made  more  prisoners  than 
we  had  the  force  to  take  care  of,  and  I  was 
more  fully  convinced  after  the  examination 
in  the  ward-room  before  the  council  of  offi- 
cers. 

Q.  Do  you  know  whether  Mr.  Spencer 
did  apply,  shortly  before  the  sailing  of  the 
Somers,  to  be  detached  from  her,  and  at 
whose  instance  did  he  apply,  and  how  long 
before  she  sailed  ? 

A.  I  believe  he  did  apply  to  be  detached, 
and  the  commander  told  him  he  would  for- 
ward it ;  to  the  best  of  my  knowledge  and 
belief,  he  applied  at  his  own  instance,  and  a 


short  time  before  she  sailed ;  we  had  not 
time  to  hear  from  Washington. 

Q.  Do  you  know  whether  the  officers  of 
the  Somers  were  cautioned  by  Commander 
Mackenzie  against  any  intimacy  with  Mr. 
Spencer  ? 

A.  Not  to  my  knowledge. 

Q.  At  ten  o'clock  you  communicated  what 
you  had  heard  from  Mr.  Heiskill,  to  Com- 
mander Mackenzie,  who  told  you  strictly 
to  observe  Mr.  Spencer ;  did  you  do  so  ? 
and  how  was  he  occupied  until  he  went 
aloft  to  the  foretop  ?  and  how  after  you  ob- 
served him  on  the  Jacob's  ladder  ? 

A.  I  did  observe  him  before  that ;  he  was 
about  in  different  parts  of  the  vessel ;  I  think 
I  saw  him  in  the  steerage ;  once  before  that 
I  saw  him  on  the  forecastle.  After  I  saw 
him  on  the  Jacob's  ladder,  I  think  he  had  a 
watch  ;  I  am  not  positive. 

Q.  Was  Mr.  Spencer,  on  the  26th  of  No- 
vember till  the  time  of  his  arrest,  engaged 
in  the  usual  duties  of  an  officer  of  his  sta- 
tion ? 

A.  I  believe  that  he  was  engaged  in  the 
usual  duties  of  his  station,  except  when  in 
the  foretop  having  India  ink  pricked  into  his 
arm,  and  his  menacing  look  on  the  Jacob's 
ladder. 

Q.  Was  he  on  duty  when  he  was  in  the 
foretop  ? 

A.  No,  sir. 

Q.  Was  it  an  unusual  thing  for  Mr.  Spen- 
cer to  be  in  the  foretop  ? 

A.  I  think  I  have  seen  him  there  before. 

Q.  Have  you  not  seen  other  young  offi- 
cers in  the  foretop,  when  not  on  duty  ? 

A.  Yes,  sir,  I  have. 

Q.  Explain  the  discipline  of  the  brig,  as 
to  watches  ?  how  many  would  regularly  be 
on  mid-watch?  and  when  next  after  the 
25th  of  November, 'would  Mr.  Spencer  and 
Mr.  Rogers  have  been  on  mid-watch  to- 
gether ? 

A.  The  watch -bill  will  show  the  exact 
number ;  I  believe  one  half  the  crew,  with 
the  exception  of  the  idlers,  who  are  in  the 
watch,  but  are  not  on  deck  usually ;  Mr. 
Spencer  and  Mr.  Rogers  would  have  had 
the  mid-watch  the  fourth  night,  I  be- 
lieve. 

Q.  Did  Wales  swear  before  the  council 
of  officers  that  Mr.  Spencer  called  out  to 
him,  "  What  the  devil  are  you  about,  cruis- 
ing around  there  ?"  as  he  (Wales)  was  try- 
ing, on  the  night  of  the  25th,  to  get  into  the 


PROCEEDINGS  OF  THE 


wardroom  ?    when  did  you  first  hear  this 
from  Wales  ? 

This  question  was  objected  to  by  the 
accused  ;  the  court  was  cleared,  and,  on  the 
opening  thereof,  the  judge  advocate  stated 
that  the  court  had  allowed  the  question  to 
be  put. 

A.  I  don't  recollect  whether  that  was 
down  ;  he  did  swear  before  the  council  of 
officers,  but  I  don't  recollect  whether  he 
swore  to  this  fact. 

Q.  Did  you  hear  of  this  exclamation  be- 
fore Mr.  Spencer's  arrest  ? 

A.  I  heard  the  exclamation  was  made, 
but  do  not  recollect,  at  this  time,  when  it 
was  told  me. 

Q.  When  Wales  told  you  Mr.  Heiskill 
wanted  to  see  you,  did  you  notice  any  per- 
sons gather  around  you  (and  if  so,  whom  ?) 
to  overhear  him  ? 

A.  I  did  not  take  particular  notice.  I 
walked  clown  below  immediately ;  it  was  at 
the  fore-hatch. 

Q.  When  did  you  first  hear  the  mutiny 
was  to  break  out  before  the  arrival  of  the 
Soiners  at  St.  Thomas  ? 

A.  I  don't  recollect  that  I  did  hear  it. 

Q.  Did  Wales  swear  before  the  council 
of  officers,  that  Mr.  Spencer  had  told  him 
that  the  mutiny  was  to  break  out  before  you 
reached  St.  Thomas  ? 

.A.  The  evidence  will  show ;  I  am  not 
positive. 

Q.  Had  you  any  information,  before  the 
execution,  that  the  mutiny  was  intended  to 
break  out  before  you  reached  St.  Thomas  ? 

A.  I  recollect  of  no  other  at  this  time, 
than  that  it  was  to  break  out,  when  Mr. 
Spencer  had  the  mid-watch. 

Q.  When  Commander  Mackenzie  told 
you  he  doubted  the  truth  of  the  existence 
of  a  mutiny,  because  the  crew  of  the  brig 
was  in  good  discipline,  did  you  then  gainsay 
that  opinion  of  his,  as  to  the  discipline  of 
the  ship  ? 

A.  I  don't  recolject  what  remark  I  made  ; 
I  asked  him  if  I  should  see  Mr.  Wales,  and 
get  from  him  the  truth  of  the  story. 

Q.  How  long  had  you  known  Mr.  Spen- 
cer ? 

A.  From  the  time  he  came  on  board  of 
the  brig. 

Q.  How  long  was  Mr.  Spencer  on  board 
before  the  Somers  sailed  ? 

A.  The  log-book  will  show ;  I  am  not 
positive. 


Q.  Had  you  any  consultation  with  Com- 
mander Mackenzie,  as  to  whether  it  was 
not  desirable  to  get  rid  of  Mr.  Spencer 
before  you  sailed,  and  what  was  your  opin- 
ion? 

A.  I  think  the  commander  and  myself 
had  a  conversation  on  that  subject,  and  I 
thought  it  was  best  to  get  rid  of  him,  for  we 
had  no  accommodations  in  the  steerage  ;  we 
could  not  make  him  comfortable. 

Q.  Did  not  the  commander  express  ob- 
jections to  Mr.  Spencer's  association  with 
the  commander's  relatives  and  connexions  ? 
A.  No,  sir,  not  that  I  heard  ;  I  don't  rec- 
ollect at  this  time  that  he  did. 

Q.  You  say,  that  when  asked  your  opin- 
ion, on  the  26th  of  November,  by  Com- 
mander Mackenzie,  as  to  what  you  would 
do  in  his  place,  you  said  you  would  bring 
that  young  man  (meaning  Mr.  Spencer)  aft, 
and  iron  him ;  had  the  purser's  steward  have 
come  to  you  with  a  like  story,  in  respect  to 
any  other  officer  but  Mr.  Spencer,  would 
you  have  determined  on  such  a  course,  be- 
fore any  announcement  to  him  of  what  Mr. 
Wales  had  reported  ? 

A.  I  would  have  confined  any  officer,  if 
I  had  the  same  cause  for  suspecting  him. 

Q.  At  the  time  of  the  arrest  of  Mr.  Spen- 
cer, and  when  the  commander  charged  him 
with  aspiring  to  the  command  of  his  vessel, 
did  the  commander  tell  Mr.  Spencer  that  he 
had  heard  of  his  scheme  from  Mr.  Wales  ? 
A.  I  am  not  positive  ;  but  I  think  he  al- 
luded to  the  conversation  on  the  booms. 

Q.  At  the  time  of  the  arrest  of  Mr.  Spen- 
cer, did  the  commander,  in  his  conversation 
with  Mr.  Spencer,  refer  to  any  conversations 
but  one  on  the  booms  ? 

A.  I  think  he  did;  he  asked  him  if  he 
had  held  conversations  with  Small  and 
others. 

Q.  Were  all  the  officers  but  Mr.  Hays 
around  at  the  time  ? 

A.  They  were  all  round  the  starboard 
side  of  the  quarter-deck  ;  the  conversation 
was  not  in  a  loud  voice. 

Q.  Was  your  manner  stern  and  com- 
nanding  to  Mr.  Spencer,  when  you  ordered 
lim  out  from  among  the  officers  to  disarm 
him? 

A.  I  believe  so. 

Q.  When  you  asked  Mr.  Spencer  as  to 
concealed  weapons,  did  he  tell  you,  you 
would  believe  nothing  now  that  he  would 
say? 


NAVAL  COURT  MARTIAL. 


43 


A.  He  did  tell  me  so ;  and  said,  I  had 
better  overhaul  him. 

Q.  What  was  Mr.  Spencer's  reply,  when 
you  told  him  your  orders  were  to  shoot  him, 
if  he  attempted  escape,  or  went  forward  of 
the  mainmast  ? 

A.  He  told  me,  I  think,  that  he  would 
obey  the  order. 

Q.  Who  was  the  officer  of  the  deck,  and 
who  were  the  midshipmen,  at  the  time  Wales 
inferred  that  Wilson  was  drawing  out  the 
handspike  for  an  evil  purpose  ? 

A.  I  don't  recollect. 

Q.  You  say  Commander  Mackenzie  told 
Mr.  Spencer,  then,  "  you  do  not  deny  having 
had  frequent  conversations  with  Small  and 
others  ;"  was  this  in  the  conversation  before 
Mr.  Spencer  was  disarmed  and  ironed? 

A.  He  said,  "  Do  you  deny,"  I  think;  it 
was  before  he  was  disarmed  and  ironed  ; 
he  was  disarmed  first  and  ironed  after- 
ward. 

Q.  Upon  reflection,  are  you  clear  in  your 
recollection  that  the  word  "  frequent"  was 
used  ?  was  not  the  commander  asking  Mr. 
Spencer  as  to  his  conversation  with  Mr. 
Wales  on  the  booms  ? 

A.  My  impression  is  that  the  word  "  fre- 
quent" was  used;  it  struck  me  he  was  al- 
luding to  Small  and  others  besides  Mr. 
Wales. 

Q.  Did  Mr.  Spencer  answer  quickly? 

A  I  don't  recollect.  I  think  he  hesi- 
tated; I  think  he  showed  some  confusion 
when  he  spoke ;  he  spoke  calmly. 

Q.  Who  kept  guard  over  Mr.  Spencer  on 
the  night  of  the  26th  of  November? 

A.  I  am  not  positive  ;  I  think  the  officer 
of  the  deck ;  I  was  up  frequently  and  exam- 
ined his  irons  ;  there  was  an  order  to  ex- 
amine the  irons  of  the  prisoners  every  half- 
hour,  as  the  irons  were  not  deemed  secure  ; 
the  commander  was  pretty  much  all  the 
time  on  deck. 

Q.  Did  Mr.  Spencer  say  nothing  to  you 
about  this  watchfulness  ? 

A.  Not  that  I  recollect. 

Q.  Did  you  take  hold  of  his  arms,  and 
inspect  his  irons  ? 

A.  Arms  and  feet,  frequently. 

Q.  Do  you  say  he  made  no  statement  to 
you,  that  he  designed  an  attempt  at  es- 
cape ? 

A.  I  don't  recollect ;  when  I  would  tell 
him  his  orders,  I  told  him  my  reasons  for 
doing  so,  that  he  might  preserve  his  life ; 


when  I  would  tell  him  his  orders,  he  would 
say  he  would  obey  them,  but  did  not  always 
do  it. 

Q.  Did  you  charge  him  with  having  dis- 
obeyed the  orders  ? 

A.  I  did;  when  Mr.  Wales  reported  to 
me,  that  he  had  been  handling  a  battle-axe. 
Mr.  Wales  told  me  one  morning,  that  he 
was  handling  one  of  the  battle-axes,  and  I 
think  he  told  me,  he  looked  at  him  in  such 
a  way,  that  he  was  afraid  to  go  by  him ;  I 
went  on  deck,  and  saw  him  myself  handling 
a  battle-axe  ;  I  went  over  to  him,  and  I  said, 
"  I  was  sorry  to  see  he  was  breaking  through 
the  orders  I  had  given  him,"  and  repeated 
to  him  that  I  had  told  him  what  the  orders 
were,  and  my  reasons  for  it ;  I  told  him  he 
must  obey  the  orders  strictly  ;  that  his  life 
depended  on  it ;  I  told  him  I  would  do  my 
duty  whatever  he  did,  and  told  him  if  he 
did  not  obey  them  strictly,  I  would  put  him 
to  death  with  my  own  hands.  I  had  seen 
him  exchanging  looks  with  M'Kinley  and 
M'Kee,  and  1  think  Wilson,  and  some  oth- 
ers whose  names  I  don't  recollect,  which 
was  against  orders. 

Q.  What  was  Mr.  Spencer's  reply  to  your 
remarks  to  him,  at  the  time  of  the  battle-axe 
incident  ? 

A.  I  don't  recollect  positively,  but  I  think 
he  told  me  he  did  not  intend  to  break  my 
orders. 

Q.  Did  he  not  tell  you  he  had  taken  hold 
of  the  battle-axe  merely  for  pastime,  and  as 
it  was  near  ? 

A.  I  am  not  positive  as  to  the  fact,  but 
my  impression  is  that  he  did  make  some 
remark  of  that  kind  ;  but  his  manner  of  han- 
dling the  axe  impressed  me  with  the  belief, 
that  he  was  trying  what  he  could  do  with 
his  irons  on. 

Q.  Did  Wales  tell  Mr.  Spencer  his  fears 
about  going  past  Mr.  Spencer? 

A.  He  told  them  to  me ;  I  presume  not 
to  Mr.  Spencer.  The  order  was  for  the 
prisoner,  when  wishing  for  anything,  to 
apply  through  the  officer  of  the  deck  to 
me. 

Q.  Had  you  any  notion  that  the  maintop- 
gallantmast  was  carried  away  from  any  de- 
sign of  any  of  the  crew,  to  afford  an  occasion 
for  the  outbreak  of  the  mutiny  ? 

A.  I  was  not  on  deck  at  the  time ;  from 
what  I  was  told  of  the  circumstances  after- 
ward, I  believe  it  was. 

Q.  Were  not  the  most  suspicious  persons 


44 


PROCEEDINGS   OF  THE 


in  the  maintop  cross-trees — such  as  Crom- 
well, Small,  Wilson,  Golderman,  and  others 
— at  the  time  of  its  being  carried  away  ? 

A .  I  don't  know ;  they  were  up  there 
after  it  was  carried  away ;  when  I  first 
looked  aloft,  I  do  not  recollect  having  seen 
them ;  I  had  some  conversation  with  the 
commander  when  I  first  went  on  deck,  and 
he  ordered  me  to  take  charge  of  the  deck ; 
after  relieving  the  officer  of  the  deck,  I 
looked  aloft,  and  saw  Cromwell,  Small,  Wil- 
son, and  others,  in  the  top-mast  rigging,  and 
about  the  cross-trees. 

The  testimony  of  Lieut.  Gansevoort  was 
here  suspended  ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row, Tuesday,  Feb.  14,  at  10  o'clock,  A.  M. 


NAVY  YARD,  > 

Brooklyn,  Feb.  14,  1843.  J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Capt^n  Downes,     Captain  McKeever, 

Read, 

"       Bolton, 
"       Turner, 
"       Sloat, 
"       Smith, 
"       Storer, 


Page, 
Gwinn, 
"        Wyman, 
Com'dr  Ogden, 

Shubrick, 
Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Lieut.  Gansevoort  recalled. 

CROS.M  EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  How  long  a  time  do  you  suppose  had 
elapp^d  from  the  carrying  away  of  the  main- 
topgiilant  mast,  to  the  time  of  your  getting 
on  deck  ? 

A.  A  short  time — a  few  minutes  ;  I  can't 
tell  the  exact  time. 

Q.  Did  you  hear  any  orders  given  to  ac- 
count for  the  fact  of  Cromwell,  Small,  Wil- 
SOP,  and  Golderman  going  aloft  after  the 
accident  ?  who  was  the  officer  of  the 
deck? 

A.  I  did  not  hear  any  orders,  that  I  rec- 
ollect ;  Mr.  Hays  was  the  officer  of  the 
dwk. 

Q.  Which  of  the  persons  named  in  the 
test  questions,  were  out  of  their  stations,  by 
feeing  aloft  on  the  cross-trees  ? 


A.  Wilson  and  Cromwell  were  out  of 
their  stations. 

Q.  Had  you  not,  previously  to  the  occur- 
rence to  the  mast,  told  the  commander  of 
suspicions  as  to  Cromwell,  and  that  you  re- 
garded him  as  a  dangerous  man  ? 

A.  I  think  I  had. 

Q.  Had  you  and  the  commander  deter- 
mined, before  the  maintop-gallantmast  was 
carried  away,  that  Cromwell  was  to  be  ar- 
rested ? 

A.  I  think  not,  sir. 

Q.  Was  not  Cromwell  arrested  as  soon 
as  he  came  from  aloft,  after  the  carrying 
away  of  the  maintop-gallantmast  ? 

A.  Yes,  sir. 

Q.  You  say  you  exclaimed,  when  you 
went  on  deck,  at  the  time  of  carrying  away 
the  mast,  "  God,  they  are  coming!"  Were 
you  then  under  the  impression  that  Mr. 
Spencer's  accomplices  were  rushing  to  dis- 
arm the  officers  and  effect  his  rescue  ? 

A.  I  did  not  say,  when  I  went  on  deck, 
after  the  mast  was  carried  away,  "  God, 
they  are  coming !"  The  mast  was  carried 
away  about  three  o'clock  ;  I  am  not  posi- 
tive ;  it  was  late  when  the  other  mast  was 
sent  up. 

Q.  When  the  rush  took  place,  at  the  time 
of  the  pointing  of  the  mast,  on  the  27th  No- 
vember, which  you  have  described,  can  you 
recollect  the  words  Mr.  Rogers  cried  out  to 
you,  when  he  heard  your  voice  threatening 
to  shoot  whoever  put  his  foot  on  the  quarter- 
deck? 

A.  I  think  he  said,  "  It  is  me,  sir  ;  I  am 
sending  the  men  aft." 

Q.  Did  the  tone  of  Mr.  Rogers  indicate 
alarm  lest  you  should  shoot  some  one  ? 

A.  I  don't  recollect  that  I  observed  it. 

Q.  What  reply  was  made  to  you  by  any 
of  the  men,  when  you  threatened  to  shoot 
any  one  who  put  his  foot  on  the  quarter- 
deck ? 

A.  I  don't  recollect  that  any  of  them 
spoke. 

Q.  When  you  ascertained  from  Mr  Ro- 
gers it  was  his  order  had  put  the  men  in 
motion,  did  you  not  order  the  men  aft,  after 
enjoining  more  quietness  of  movement,  to 
man  the  mast,  and  did  they  not  obey  you  ? 

A.  I  did  order  them  aft,  and  they  did 
obey  me. 

Q.  Did  you  not  afterward  express  to  the 
commander  and  some  of  the  other  officers, 
that  you  had  been  under  a  wrong  impression 


NAVAL  COURT  MARTIAL. 


45 


as  to  the  meaning  of  the  men  at  the  time 
they  were  obeying  Mr.  Rogers'  order  ? 

A.  I  think  I  did  afterward  express  my 
satisfaction  that  I  had  not  shot  among  them, 
as  I  was  near  doing ;  my  impression  was, 
when  they  were  coming  down,  that  it  was 
for  the  purpose  of  destroying  us  (when  the 
rush  took  place)  ;  I  don't  recollect  having 
said  I  was  under  a  wrong  impression,  to  the 
commander,  or  any  other  officer. 

Q.  Why  were  you  gratified  that  you  had 
not  shot  ? 

A.  Because  I  might  have  killed  an  inno- 
cent man. 

Q.  Was  it  not  after  the  arrest  of  Crom- 
well and  Small  that  the  commander  ad- 
dressed the  crew,  and  announced  to  them 
the  mutiny  ?  What  was  the  manner  of  the 
crew  on  hearing  of  it  ? 

A.  The  log-book  states  it  was  after  the 
arrest  of  Cromwell  and  Small,  and  I  believe 
it  was,  which  would  make  it  the  28th,  civil 
time ;  the  log-book  is  kept  astronomical 
time ;  the  crew  appeared  to  be  attentive, 
and  I  thought  it  made  a  good  impression  at 
the  time  on  some  of  them. 

Q.  Did  not  many  of  the  crew  appear  as- 
tonished— did  not  many  weep  ? 

A.  Some  of  the  younger  part  of  the  crew 
appeared  astonished  ;  1  am  not  positive  as  to 
the  weeping  ;  my  impression  is,  that  I  saw 
Lego,  one  of  the  boys,  in  tears. 

Q.  In  reply  to  Commander  Mackenzie's 
question,  you  have  said  that  you  think  you 
did  tell  King  and  Dickinson  of  Mr.  Spen- 
cer's plot  on  the  evening  of  the  arrest ;  did 
you  charge  them  to  keep  the  information 
you  gave  them  to  themselves  ? 

A.  I  did. 

Q.  Did  you  regard  the  look  of  Mr.  Spen- 
cer, which  he  gave  you  while  on  the  Ja- 
cob's ladder,  as  indicating  malicious  feeling 
toward  yourself? 

A.  It  was  a  new  expression  of  Mr.  Spen- 
cer's ;  I  knew  he  had  had  an  operation  per- 
formed on  his  eye  ;  he  had  told  me  so  ;  I 
did  regard  it  as  indicating  decidedly  mali- 
cious feelings  to  myself. 

Q.  Why,  and  on  what  day,  did  you  take 
Mr.  Spencer  the  papers  found  in  his*  locker  ? 

A.  I  am  under  the  impression  that  it  was 
on  the  30th  ;  for  the  purpose  of  his  proving 
more  clearly  his  guilt ;  I  took  him  the  paper 
that  he  might  translate  it,  so  I  could  under- 
stand it ;  my  object  was  to  obtain  from  him 
an  acknowledgment  of  his  guilt. 


Q.  Was  it  after  Mr.  Spencer  told  you  he 
would  have  a  conversation  with  you  when 
his  mind  was  in  a  suitable  state  ? 

A.  It  was  after  that,  I  think. 

Q.  When  Mr.  Spencer  told  you  he  would 
have  a  conversation  with  you,  did  he  tell 
you  he  would  answer  any  questions  you 
would  put  to  him  ? 

A.  I  don't  recollect  at  this  time. 

Q.  Did  he  not  tell  you  that  his  object  in 
proposing  the  conversation  with  you  was  to 
tell  you  everything  ? 

A.  I  don't  recollect  that  he  did. 

Q.  Did  you  not  tell  Commander  Mac- 
kenzie and  other  officers,  that  Mr.  Spencer 
told  you  he  would  answer  every  question 
you  would  put  to  him  ? 

A,  I  don't  recollect  that  I  did;  I  told 
Commander  Mackenzie  this  conversation 
with  Mr.  Spencer. 

Q.  When  you  told  Commander  Macken- 
zie of  this  conversation,  did  he  advise  you 
to  hold  the  interview  with  Mr.  Spencer  and 
hear  what  he  had  to  say  ? 

A.  Yes,  sir,  I  believe  he  did. 

Q.  Did  Commander  Mackenzie  advise 
you  to  put  free  and  full  inquiries  to  Mr. 
Spencer  as  to  his  scheme  ? 

A.  I  don't  recollect,  but  my  impression  is 
he  told  me  to  find  out  all  I  could  about  it ; 
it  is  impossible  to  recollect  all  the  conver- 
sations that  took  place  between  the  com- 
mander and  myself  during  that  affair. 

Q.  Did  you  report  to  Commander  Mac- 
kenzie the  interview  you  did  have  with  Mr. 
Spencer,  in  pursuance  of  Mr.  Spencer's  re- 
quest ? 

A.  I  did  report  it,  but  I  do  not  know  at 
what  time  afterward ;  I  mentioned  it  to 
Commander  Mackenzie  another  time  ;  it 
may  have  been  after  the  execution ;  rtie 
commander  told  me  that  Mr.  Spencer  had 
told  him  the  same  he  had  told  me  ;  I  refer 
to  the  conversation  about  his  having  a  plot 
on  board  of  other  vessels  ;  Mr.  Spencer  did 
not  tell  me  he  wished  me  to  repeat  our 
conversation  to  the  commander,  but  from 
his  manner  I  thought  he  did. 

Q.  Was  this  the  interview  you  had  when 
Midshipman  Delonde  was  present  ? 

A.  No,  sir. 

Q.  Was  it  before  or  after  the  interview 
when  Midshipman  Delonde  was  present  ? 

A.  Before,  I  think. 

Q.  In  the  interview  when  Mr.  Delonde 
was  not  present,  did  you  ask  Mr.  Spen- 


PROCEEDINGS  OF  THE 


cer  anything  as  to  the  paper  found  in  his 
locker  ? 

A.  I  don't  recollect  that  I  did. 

Q.  In  this  interview,  did  you  ask  him  the 
names  and  number  of  his  accomplices  ? 

A.  I  don't  recollect ;  I  had  frequent  in- 
terviews with  Mr.  Spencer. 

Q.  Did  you  not  ask  him  how  far  the 
conspiracy  had  gone,  in  these  same  inter- 
views ? 

A.  I  don't  recollect. 

Q.  You  say  he  told  you  he  had  had  this 
plot  in  the  John  Adams  and  Potomac,  but  it 
had  not  gone  so  far  as  in  the  Somers.  Did 
you  not  then  ask  him  how  far  it  had  gone, 
or  did  he  tell  you  ? 

A.  I  don't  recollect ;  he  told  me  he  had 
had  this  plot  on  foot  on  board  of  every  vessel 
he  had  been  in,  and  mentioned  the  John 
Adams  and  Potomac,  but  that  he  had  never 
gone  as  far  as  he  had  on  board  the  Somers  ; 
I  don't  recollect  asking  him  how  far  he  had 
got,  or  his  telling  me ;  Mr.  Spencer  was 
not  disposed  to  communicate  freely  with  me 
at  any  time. 

Q.  Did  he  tell  you,  in  this  same  inter- 
view, when  he  had  broached  his  scheme  to 
Small  first  ? 

A.  No,  sir. 

Q.  As  the  commander  had  instructed  you 
to  find  out  all  you  could  in  this  interview, 
how  is  it  you  put  none  of  the  preceding 
matter  of  inquiry  to  Mr.  Spencer  ? 

A.  He  did  not  show  much  of  a  disposi- 
tion to  communicate  at  any  time  ;  I  wished 
to  choose  a  time  when  he  was  disposed  to 
talk,  and  his  mind  was  in  a  state  to  do  so  5 
I  may  have  then  had  a  reason  for  not  ask- 
ing questions,  which  I  do  not  recollect  now  ; 
I  don't  know  that  the  commander  did  refer 
to  .this  particular  interview,  but  his  general 
instructions  were,  to  find  out  what  I  could. 

Q.  You  say  you  have  had  several  inter- 
views with  Mr.  Spencer.  Did  you  in  any 
of  your  interviews,  when  Mr.  Delonde  was 
not  present,  ask  Mr.  Spencer  who  were  his 
accomplices,  when  he  had  first  broached  the 
scheme  to  Small,  or  when  he  had  made  out 
the  paper  found  in  his  locker  ? 

A.  I  don't  recollect  that  I  did. 

Q.  If  you  made  none  of  these  inquiries 
of  Mr.  Spencer,  what  did  you  do  in  pursu- 
ance of  the  commander's  instructions  to  find 
out  from  Mr.  Spencer  what  you  could  as  to 
the  mutiny. 

A.  I  obeyed  his  orders  to  take  the  best 


means  I  could  to  find  out  the  state  of  the 
vessel ;  I  inquired  among  the  crew  for- 
ward ;  I  believe  I  obeyed  the  commander's 
order  ;  I  showed  Mr.  Spencer  the  paper ; 
I  got  him  to  translate  it  when  Mr.  Delonde 
was  by. 

Q.  When  did  you  show  Mr.  Spencer  the 
paper  when  Mr.  Delonde  was  by  ? 

A.  I  think  on  the  30th. 

Q.  You  say,  that  on  the  30th  November 
you  showed  the  paper  found  in  Mr.  Spen- 
cer's locker  to  him,  and  that  he  translated  it 
in  the  presence  of  Midshipman  Delonde. 
Did  you  ask  him  whether  those  papers  con- 
tained a  true  list  of  those  who  were  his  ac- 
complices in  the  mutiny  ?  What  did  he  say 
about  those  names  ? 

A.  I  don't  recollect;  he  read  them  off; 
acknowledged  it  to  be  his  paper. 

Q.  Did  Mr.  Spencer  say  anything  about 
that  list  in  this  interview,  when  Mr.  De- 
londe was  by,  as  containing  the  names  of 
those  he  conjectured  would  join  him,  or  as 
containing  the  names  of  those  who  had 
joined  him  ? 

A.  I  don't  recollect. 

Q.  In  this  interview,  when  Mr.  Delonde 
was  present,  did  you,  or  any  in  your  hear- 
ing, put  any  questions  to  Mr.  Spencer  as  to 
the  names  on  that  list  besides  that  of  E. 
Andrews,  or  did  Mr.  Spencer  make  any  re- 
marks as  to  any  of  those  names  ? 

A.  He  did  not  make  any  remarks  except 
those  about  E.  Andrews,  I  think — that  is 
my  impression  ;  about  the  writing — some 
hieroglyphics  at  the  head  of  one  of  the  col- 
umns— I  asked  him  if  that  was  the  alphabet 
he  invented  at  college  ;  I  don't  recollect  of 
putting  or  hearing  any  questions  put  as  to 
the  names  on  that  list. 

Q.  Did  you  tell  Small  that  Mr.  Spencer 
had  told  you  that  E.  Andrews  was  Small's 
genuine  name  ? 

A.  I  don't  recollect ;  I  am  not  positive  as 
to  that,  but  I  think  not. 

Q.  Was  D.  M'Kinley  a  foretop  man  ? 

A.  He  was  a  maintop  man ;  I  think  the 
watch-bill  will  show. 

Q.  Had  the  lists  found  in  the  locker  of 
Mr.  Spencer  been  shown  him  after  the  ar- 
rest of  Cromwell  and  Small,  and  before  the 
arrest  of  any  others  ? 

A.  I  think  it  was  after  the  arrest  of 
Cromwell  and  Small;  the  log-book  states 
that  after  9  o'clock  at  quarters,  on  the  30th 
of  November,  civil  time,  M'Kinley,  M'Kee, 


NAVAL  COURT  MARTIAL. 


47 


and  Wilson,  were  arrested  ;  my  impression 
is,  that  the  papers  of  Mr.  Spencer  were 
shown  him  after  the  arrest  of  Wilson, 
M'Kinley,  and  M'Kee  ;  I  am  not  positive. 

Q.  Did  Mr.  Spencer  tell  you,  or  any  one 
in  your  hearing,  at  any  time,  how  far  his 
conspiracy  extended,  how  many  on  the  list 
knew  of  it  ? 

A.  Not  that  I  recollect. 

Q.  Did  Mr.  Spencer  tell  you,  or  any  one 
in  your  hearing,  at  any  time,  when  that  list 
was  made  out  1  was  any  inquiry  as  to  that 
put  to  him  ? 

A.  I  don't  recollect  that  Mr.  Spencer  told 
me,  nor  that  any  inquiry  was  put  to  him. 

Q.  Who  took  Mr.  Spencer  his  meals  ? 

A.  Howard,  the  steerage  boy. 

Q.  Did  Mr.  Spencer  ever  say  to  you,  or 
any  one  in  your  hearing,  as  to  when  he  had 
first  mentioned  his  scheme  to  Small  ? 

A.  Not  that  I  recollect. 

Q.  In  any  conversation  held  by  you,  or 
any  one  in  your  hearing,  with  Small,  did 
he  ever  say  how  long  he  (Small)  had  known 
of  Mr.  Spencer's  scheme  ? 

A.  Not  that  I  recollect. 

A.  What  were  the  remarks  of  Comman- 
der Mackenzie  to  Cromwell  at  the  time  of 
his  arrest,  and  the  replies  of  Cromwell  ? 

A.  He  told  him  that  there  were  so  many 
suspicions  against  him,  that  he  thought  it 
necessary  to  confine  him ;  he  should  there- 
fore be  confined  as  Mr.  Spencer  was,  to  be 
taken  home  and  tried  by  the  laws  of  his 
country;  if  he  was  innocent  he  would  be 
acquitted,  but  if  guilty  he  would  be  pun- 
ished ;  I  think  Cromwell  said,  "  Yes,  sir  ; 
but  I  don't  know  anything  about  it,  1  assure 
you,  I  don't  know  anything  about  it ;"  as 
near  as  I  can  recollect,  this  was  the  con- 
versation. 

Q.  Did  the  commander  then  charge  him 
with  having  had  conversation  of  a  mutinous 
character  with  Mr.  Spencer  ?  if  so,  what 
was  Cromwell's  reply  1 

A.  I  don't  recollect. 

Q.  Did  Commander  Mackenzie  then  tell 
Cromwell  he  regarded  him  as  a  dangerous 
man  ? 

A.  I  don't  recollect. 

Q.  Did  you  not  swear  before  the  court 
of  inquiry  that  Commander  Mackenzie  then 
told  Cromwell  he  regarded  him  as  a  dan- 
gerous man  ? 

A.  I  don't  recollect ;  the  records  of  the 
court  will  show. 


Q.  Immediately  after  the  commander's 
conversation  with  Cromwell,  what  passed 
between  the  commander  and  Small  ?  Was 
their  conversation  within  the  hearing  of 
Cromwell  ? 

A.  That  I.  can't  say;  the  conversation 
was  of  the  same  nature  as  that  he  had  with 
Cromwell,  as  near  as  I  can  recollect. 

Q.  Was  Cromwell  as  near  to  the  com- 
mander and  Small  as  you  were,  when  the 
commander  was  talking  to  Small,  and  was 
the  tone  of  the  commander's  voice  distinct? 

A.  I  don't  think  he  was  ;  my  impression 
is,  that  the  tone  of  the  commander  was  dis- 
tinct, though  low. 

Q.  What  was  Small's  reply  to  the  com- 
mander at  the  time  of  his  arrest  ? 

A.  I  am  under  the  impression  that  he 
confessed  at  this  time  that  he  had  had  con- 
versations with  Mr.  Spencer ;  the  comman- 
der said,  as  near  as  I  can  recollect  it,  "  You 
have  had  conversations  with  Mr.  Spencer ," 
he  did  not  deny  it. 

Q.  Did  Commander  Mackenzie  tell  Mr. 
Spencer  he  was  to  be  taken  to  the  United 
States  for  trial,  or  did  you  ? 

A.  I  don't  recollect  hearing  the  comman- 
der, and  I  don't  recollect  that  I  did ;  that 
was  my  impression  when  he  was  made  pris- 
oner. 

Q.  In  any  conversation  with  Small,  did 
he  pretend  to  know — did  he  say  he  did  know 
of  any  one  as  engaged  with  Mr.  Spencer  in 
mutiny  but  himself  and  Wales  ? 

A.  His  conversation  with  me  about  Crom- 
well led  me  to  understand  that  Cromwell 
was  engaged  in  it ;  I  don't  know  that  he 
mentioned  any  one  else. 

Q.  Did  you  not  first  mention  Cromwell's 
name  to  Small,  and  ask  him  if  he  was  en- 
gaged in  the  mutiny  ? 

A.  I  think  I  did  ;  that  was  the  object  of 
my  conversation,  to  ascertain  from  him 
whether  he  was. 

Q.  Did  not  Small  say  it  was  a  hard  thing 
for  him  to  say,  whether  Cromwell  was,  or 
not,  engaged  in  the  mutiny  ? 

A.  He  said,  "  That  is  a  hard  thing  for 
me  to  say ;  I  have  seen  him  give  him  more 
money  than  I  should  like  to  give  him,  or 
lend  him  either." 

Q.  Did  you  not  then  press  Small  to  give 
you  a  more  explicit  answer  ? 

A.  I  said  to  him,  that's  not  the  thing;  I 
want  a  plain  answer  to  a  plain  question — is 
not  Cromwell  deeply  engaged  with  Mr. 


48 


PROCEEDINGS  OF  THE 


Spencer  to  take  the  vessel  out  of  the  hands 
of  her  officers  ?  This  is,  as  near  as  I  can 
recollect,  the  conversation ;  his  reply  was, 
"  If  anybody  is,  he  is." 

Q.  Did  Small  tell  you  there  was  a  plot 
to  take  the  vessel  out  of  the  hands  of  her 
officers  ? 

A.  I  don't  recollect  that  he  did. 

Q.  What  did  you  mean  when  you  left 
the  conversation  saying,  "  I  thought  so"  ? 

A.  I  meant  that  I  thought  that  he  (Crom- 
well) was  engaged  in  it. 

Q.  Did  you  mean  that  Small  had  given 
you  certain  information  that  Cromwell  was 
in  the  conspiracy,  or  that  you  agreed  with 
Small  in  thinking  Cromwell  was,  if  there 
was  a  plot  at  all  ? 

A.  I  understood  it  as  certain  informa- 
tion ?  the  impression  made  on  my  mind 
was  that  he  knew  that  Cromwell  was  en- 
gaged in  it. 

Q.  Was  not  the  manner  of  speech  of 
Small  slow  and  thoughtful  1 

A.  Clear  and  confident  his  manner  was. 

Q.  Did  you  at  any  time  offer  any  induce- 
ment to  Small  to  tell  you  the  whole  truth  ? 
did  you  tell  him  he  had  better  tell  you  all 
about  it  ? 

A.  Not  to  my  knowledge. 

Q.  On  what  day  was  it  after  Cromwell's 
arrest  that  Mr.  Spencer  declared  him  inno- 
cent of  any  connexion  with  him,  and  asked 
you  if  Cromwell  was  confined  for  anything 
concerning  himself  (Mr.  Spencer)  ? 

A.  I  am  not  positive  whether  it  was  at 
the  time  Cromwell  was  confined  or  the 
next  morning.  By  his  manner  I  judged  that 
he  wished  Cromwell  was  set  free. 

Q.  Did  you  not  hear  Mr.  Spencer  again 
on  the  day  of  his  execution,  after  the  com- 
mander told  him  he  was  to  die  in  ten  min- 
utes, declare  that  Cromwell  was  innocent, 
and  beg  that  he  might  be  believed  ? 

A.  1  have  no  recollection  of  having  heard 
that  remark. 

Q.  Did  you  hear  Commander  Macken- 
zie, after  the  execution,  admit  that  Spencer  \ 
had  declared   Cromwell  innocent  after  he  j 
had  announced  their  fate  to  the  prisoners, 
and  beg  that  it  might  be  believed  ? 

A.  I  think  at  the  time  that  the  prisoners 
were  about  going  forward,  the  commander 
said  to  me  that  Mr.  Spencer  had  told  him  that 
Cromwell  was  innocent,  and  asked  me  what 
I  thought  about  it ;  I  told  him  that  I  thought ; 
that  Cromwell  was  guilty  ;  I  don't  know  | 


whether  I  proposed  to  ask  the  petty  officers 
or  whether  he  ordered  me  to  do  it,  but  I  did 
ask  them ;  nobody  said  he  was  innocent, 
and  Dickinson,  I  think,  said  "  he  (Crom- 
well) ought  to  have  thought  of  that  before." 

Q.  Did  the  commander  tell  you  that 
Cromwell  had  on  his  knees  protested  his 
innocence,  and  that  Spencer  begged  that  he 
might  be  believed,  and  that  he  (the  com- 
mander) was  staggered  by  it  ? 

A.  I  don't  recollect ;  I  am  under  the  im- 
pression that  he  did  tell  me  something  of 
that  nature  ;  what  the  words  were  I  don't 
recollect. 

Q.  Did  you  then  tell  the  commander 
there  was  not  a  shadow  of  doubt  of  Crom- 
well's guilt  ? 

A.  I  believe  I  did,  and  I  don't  think  I 
saw  any  doubt  in  the  minds  of  those  petty 
officers,  as  far  as  I  could  judge  by  appear- 
ances ;  I  did  not  judge  from  that  altogether ; 
the  testimony  of  the  petty  officers,  arid  what 
I  saw  myself,  convinced  me. 

Q.  After  this,  did  Cromwell,  while  the 
whip  was  about  his  neck,  seize  your  hand, 
and  grasping  it  beg  you  to  forgive  him  ?  and 
did  he  then  declare  himself  innocent,  and 
hope  you  would  find  it  out  in  less  than  six 
months  ? 

A.  He  did,  sir. 

Q.  In  reply  to  Commander  Mackenzie's 
question  as  to  what  Cromwell  could  have 
meant  when,  asking  you  to  forgive  him,  you 
said  "  you  couldn't  tell,  unless  it  was  for 
having  meditated  taking  your  life,"  did  he 
not,  in  the  same  breath  i^hat  he  asked  you 
to  forgive  him,  further  state  that  he  was  in- 
nocent and  hoped  you  would  find  it  out  in 
less  than  six  months  ? 

A.  He  asked  me  to  forgive  him,  and  im- 
mediately added  that  "  he  was  innocent, 
and  hoped  we  would  find  it  out  in  six 
months  ?" 

Q.  Do  you  now  believe  that,  when  he 
grasped  your  hand  while  in  the  gangway 
with  the  whip  about  his  neck,  and  then  pro- 
testing his  innocence  and  asking  your  for- 
giveness, he  had  any  design  of  drawing  you 
overboard  ? 

A.  I  think  that  he  had  some  intention  of 
that  sort,  and  I  think  the  two  petty  officers 
who  were  holding  him  were  of  the  same 
opinion,  and  I  thought  how  I  should  get  on 
board  again  if  he  did  take  me  overboard ;  I 
thought  such  was  his  intention  then,  and  I 
think  so  now. 


NAVAL  COURT  MARTIAL. 


49 


Q.  Did  Mr.  Spencer  ask  the  forgiveness 
*  of  Cromwell  ?  did  he  not  ask  the  forgive- 
ness of  Wales  and  Small  ? 

^4.  He  asked  the  forgiveness  of  Wales 
and  Small,  and  not  of  Cromwell  that  I  know 
of;  I  heard  him  ask  the  forgiveness  of 
Small,  and  saw  him  stop  to  speak  to  Mr. 
Wales,  and  am  under  the  impression  he 
asked  his  forgiveness. 

Q.  Did  Small  tell  Mr.  Spencer  that  he 
had  brought  both  Cromwell  and  himself  to 
their  fate?  did  Small  use  Cromwell's  name? 

A.  He  said,  "Ah!  Mr.  Spencer,  you 
have  brought  me  to  this  :"  he  did  not  use 
Cromwell's  name  that  I  recollect. 

Q.  You  say  you  think  Small  would  not 
have  forgiven  Mr.  Spencer  but  for  the  com- 
mander's influence  ;  did  you  or  any  one  in 
your  hearing  then  ask  Small  how  much  he 
knew  of  Mr.  Spencer's  plot,  who  were  en- 
gaged in  it,  and  when  it  commenced  ? 

A.  No,  I  did  not  ask  him,  and  no  one 
that  I  heard,  to  my  recollection. 

Q.  Was  it  not  intended  on  the  evening 
of  the  27th  to  take  Mr.  Spencer  to  the 
United  States,  as  well  as  Cromwell  and 
Small,  to  be  tried  ? 

A.  Yes,  sir,  it  was,  I  believe. 

Q.  Were  you  shown  the  draft  of  the 
commander's  letter  to  the  officers  before  it 
was  sent  ? 

A.  I  don't  recollect  that  I  saw  the  letter 
before  it  was  handed  to  me  by  the  com- 
mander, on  the  starboard  side  of  the  quar- 
ter-deck. 

Q.  Had  you  any  consultation  with  the 
commander  about  his  writing  a  letter  to  the 
officers,  before  you  saw  the  one  that  was 
sent? 

A.  1  am  not  positive  as  to  the  time  he 
spoke  to  me  of  addressing  a  letter  to  the 
officers,  but  I  believe  I  knew  there  was  one 
to  be  addressed  to  them  before  I  received  it. 

Q.  Did  you  not,  on  the  28th  or  29th  of 
November,  advise  him  to  send  such  a  letter 
to  the  officers  ? 

.     A.  I  don't  recollect  that  I  gave  him  any 
advice  about  it. 

Q.  Did  you  not  hear  Wilson  when  he 
went  aft  to  make  explanation  to  the  com- 
mander, and  desire  not  be  put  in  irons  ? 

A.  I  don't  recollect  to  have  heard  him. 

Q.  Did  or  did  not  you  hear  the  explana- 
tion made  by  M'Kinley  and  M'Kee  to  the 
commander  ?  did  they  or  not  go  aft  volun- 
tarily to  make  them  ? 

7 


A.  I  don't  know  that  they  did,  and  I 
don't  recollect  to  have  heard  them. 

Q.  Was  not  the  letter  of  the  commander 
to  the  officers  prepared  before  Wilson, 
M'Kinley,  and  M'Kee  were  arrested  ? 

A.  I  don't  recollect. 

Q.  Did  you  on  the  28th,  and  at  what 
time  of  the  day,  advise  with  Mr.  Perry,  the 
master,  as  to  whether  Cromwell,  Small,  and 
Mr.  Spencer  should  not  be  put  to  death,  if 
you  had  to  take  more  prisoners  ?  and  what 
was  his  conclusion  ? 

A.  I  don't  recollect  as  to  the  day ;  I 
think  I  spoke  to  the  doctor,  Mr.  Perry,  and 
Mr.  Rogers,  and  I  think  their  conclusion 
was  that  they  should  be  disposed  of. 

BY    THE    COURT. 

Q.  Was  that  before  the  council  of  officers 
was  held  ? 
A.  Yes,  sir. 

BY  THE    JUDGE  ADVOCATE. 

Q.  Was  it  a  day  or  more  before  the  hold- 
ing of  the  council  of  officers  ? 

A.  I  don't  think  it  was  more  than  a  day ; 
I  am  not  positive  as  to  the  time. 

Q.  Did  you  communicate  the  opinion  of 
these  officers  to  the  commander,  and  when  ? 

A.  I  am  under  the  impression  I  did,  a 
short  time  after  1  had  the  conversation ;  I 
am  not  sure  I  spoke  to  them  all  the  same 
day. 

Q.  As  you  would  have  the  opinion  of 
each  officer,  did  you  communicate  it  to  the 
commander  ? 

A.  I  think  I  did,  sooner  or  later. 

Q.  Turn  to  the  log-book  under  date  of 
the  28th  of  November :  was  there  a  vessel 
reported  on  that  date  three  points  to  the 
larboard  bow  ?  was  there  any  endeavor  to 
hail  or  overhaul  her  ?  was  there  any  con- 
sultation about  placing  any  of  your  prison- 
ers aboard  of  her  between  you  and  Com- 
mander Mackenzie  ? 

A.  The  log-book  says,  "on  the  27th  of 
November  discovered  a  sail  three  fourths 
of  a  point  on  the  larboard  bow,  standing  to 
the  southward  and  westward ;  the  Somers 
was  steering  N.  65°  W.  on  the  morning  of 
the  28th,  civil  time,  between  4. and  8  o'clock, 
when  the  sail  was  seen  :"  the  log-book  time 
was  astronomical  time  ;  I  don't  know  that 
any  attempt  was  made  to  overhaul  her ;  I 
don't  recollect  to  have  heard  of  that  sail, 
excepting  after  we  arrived  here,  when  I 


50 


PROCEEDINGS  OF  THE 


heard  some  of  the  officers  talking  about  it ; 
it  may  have  been  the  same,  or  another ;  I 
have  no  recollection  about  it. 

The  examination  of  Lieut.  Gansevoort 
was  here  suspended ;  his  evidence  was 
read  over  to  him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Wednesday),  Feb.  15,  at  10  o'clock, 
A.M. 


NAVY  YARD,  BROOKLYN, 

February  15,  1843. 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Smith,  "       Shubrick, 

"       Storer,  Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  over  and  approved. 

Lieutenant  Gansevoort  recalled. 

CROSS-EXAMINED   BY  THE  JUDGE  ADVOCATE- 

Q.  At  the  time  the  mast  was  to  be 
swayed,  when  you  say  the  rush  took  place, 
did  not  Mr.  Hays  tell  you  that  at  first  only 
three  or  four  men  could  be  got  to  man  the 
mast  ropes,  and  that  it  was  owing  to  the 
complaint  of  William  Collins,  the  boat- 
swain's mate,  to  him,  that  the  peremptory 
orders  were  given  that  brought  the  men  so 
hurriedly  aft  to  their  duty  1 

A.  Mr.  Hays  did  not  address  me,  that  I 
recollect. 

Q.  Did  you  learn  at  all,  at  the  time,  that 
such  was  the  fact  from  Mr.  Rogers,  or  Col- 
lins, the  boatswain's  mate  ? 

A.  I  think  afterward,  I  don't  know  how 
long,  when  the  mast  was  up ;  I  think  Mr. 
Rogers  told  me  he  could  not  get  the  men 
to  come  aft,  that  the  men  wouldn't  come  aft, 
that  he  started  them  aft,  or  had  to  start  them 
aft. 

Q.  Did  Mr.  Spencer  tell  you,  at  any  time 
after  his  arrest,  that  he  had  been  drinking 
brandy  on  the  evening  of  the  25th  Novem- 
ber before  the  conversation  on  the  booms  ? 

A .  No,  sir,  not  that  I  recollect ;  he  told 


me  he  had  induced  the  wardroom  steward 
(Waltham)  to  steal  brandy  from  my  mess. 

Q.  At  what  time  was  the  brandy  stolen  ? 

A.  That  I  don't  know,  but  I  believe  at 
repeated  times ;  I  don't  know  that  it  was 
stolen  on  the  25th  ;  the  first  I  knew  of  it 
the  wardroom  boy  told  me,  and  I  then  asked 
Mr.  Spencer  about  it,  and  he  told  me ;  it 
was  shortly  after  Mr.  Spencer  was  confined 
that  I  learned  about  it,  I  think. 

Q.  When  was  Mr.  Spencer  first  given  to 
understand  there  was  no  intention  to  take 
him  to  the  United  States  ? 

A.  I  believe  on  the  morning  he  was  ex- 
ecuted. 

Q.  In  any  of  his  interviews  with  you, 
did  Mr.  Spencer  ask  that  he  should  be  un- 
ironed,  and  promise  to  behave  himself  cor- 
rectly ? 

A.  No,  sir. 

Q.  Did  Mr.  Spencer  speak  in  any  of 
these  interviews  of  what  he  intended  to  do 
on  getting  to  the  United  States  ? 

A.  He  asked  me  for  pen  and  paper  on 
one  day ;  I  don't  recollect  what  he  said  ;  he 
wished  to  keep  an  account  of  the  occurren- 
ces which  took  place ;  I  asked  the  com- 
mander— of  course  it  was  not  allowed.  My 
impression  was,  and  I  think  I  communicated 
it  to  the  commander,  that  he  would  proba- 
bly make  use  of  it  to  communicate  with  the 
crew. 

Q.  Did  he  tell  you  why  he  wanted  to 
keep  this  account  ? 

A.  I  don't  recollect ;  it  was  at  once  re- 
fused. This  conversation,  I  think,  sprung 
up  some  morning  when  he  was  taken  out 
of  his  irons  to  wash  himself,  which  was 
done  every  morning  ;  he  was  askeej  if  he 
wanted  anything ;  it  is  impossible  for  me  to 
recollect  dates  and  the  whole  of  conversa- 
tions ;  I  am  not  positive  that  he  was  taken 
out  of  irons  the  last  morning. 

Q.  Did  Small  tell  you,  at  any  time  after 
his  arrest,  that  he  had  been  drinking  bran- 
dy given  him  by  Mr.  Spencer  on  the  even- 
ing of  the  25th  November  before  the  con- 
versation on  the  booms  ? 

Q.  I  don't  recollect. 

BY  THE  COURT. 

Q.  Did  you  see  Mr.  Spencer  on  the  even- 
ing of  his  conversation  with  Mr.  Wales  on 
the  booms  ?  and  if  so,  had  you  any  reason 
to  believe  that  he  was  under  the  influence 
of  liquor  ? 


NAVAL  COURT  MARTIAL. 


51 


A.  I  don't  recollect  that  I  saw  him  ;  if  I 
did,  I  did  not  observe  him  ;  I  never  saw 
him  under  the  influence  of  liquor  but  once, 
when  he  dined  with  the  wardroom  by  my 
invitation ;  I  never  saw  him  drunk  at  any 
other  time,  that  I  recollect. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Had  Mr.  Wales  told  you,  soon  after 
the  arrest  of  Mr.  Spencer,  that  he  (Wales) 
had  never  had  any  mutinous  conversation 
with  Mr.  Spencer  before  the  evening  of  the 
25th  of  November  ? 

A,  I  don't  recollect  that  he  ever  told  me 
that  he  had  any  other  mutinous  conversation 
but  the  one  on  the  booms. 

Q.  When  you  saw  Mr.  Wales's  name  on 
the  list  found  in  Mr.  Spencer's  locker,  did 
you  conclude  that  it  was  put  there  without 
Mr.  Wales's  authority,  or  put  there  after 
the  conversation  on  the  booms  ? 

A.  I  supposed  it  was  put  there  after  the 
conversation  on  the  booms,  and  without  his 
authority. 

Q.  If  it  was  put  there  after  the  conversa- 
tion on  the  booms,  what  was  there  in  the 
paper  to  excite  alarm  ?  Were  not  only  four 
names  down  as  certain,  and  Mr.  Wales 
among  them  ? 

A.  I  supposed  it  was  put  there  after  the  I 
conversation  on  the  booms  ;  I  don't  know  ! 
that  Mr.  Wales  was  aware  that  his  name 
was  down  ;  my  alarm  was  not  excited  by 
the  paper,  but  from  the  manner  of  those  that  | 
were  on  that  paper,  and  the  manner  of  those 
that  were  not  on  it ;  as  translated  to  me, 
there  were  but  four  names  under  the  head 
of  certain,  and  Mr.  Wales  was  among  these, 
I  believe. 

Q.  Count,  if  you  please,  and  say  how 
many  names  are  among  the  doubtful — how 
many  to  be  kept  nolens  volens. 

A.  There  are  ten  under  the  head  of 
doubtful,  as  near  as  I  recollect,  the  transla- 
tion; eighteen  under  the  head  of  nolens-vo- 
lens. 

Q.  Please  read  the  note  as  to  the  doubt- 
ful names  as  it  was  translated  to  you  by 
Mr.  Spencer. 

A.  This  is  as  near  as  I  recollect  what 
was  told  me  at  the  time  :  Those  doubtful, 
marked  with  a  cross,  will  probably  be  in- 
duced to  join  before  the  project  is  carried 
into  execution  ;  the  remainder  of  the  doubt- 
ful will  probably  join  when  the  thing  is 
done — if  not,  they  must  be  forced.  If  any 


not  marked  down  wish  to  join  after  it  is 
done,  we  must  pick  out  the  best  and  dispose 
of  the  rest. 

Q.  Seeing  this  paper  then,  and  thinking 
that  Mr.  Wales's  name  had  been  put  down 
after  the  conversation  on  the  booms,  did  you 
believe  Mr.  Spencer  had  any  matured  plot 
with  twenty  men  of  the  crew  of  the  Som- 
ers? 

A.  Yes,  sir ;  I  did  believe  so,  from  the 
conversation  which  Mr.  Wales  had  repeat- 
ed, and  from  the  appearance  of  the  crew. 

Q.  Did  you  ever  ask  Mr.  Spencer  when 
he  had  put  down  Wales's  name  ? 
A.  No,  sir  ;   not  to  my  recollection. 
Q.  Does  Cromwell's  name  appear  on  that 
list? 

A.  It  does  not ;  there  was  a  name  which 
I  think  represented  him. 

Q.  During  the  time  of  the  investigation 
before  the  council  of  officers,  was  it  at  all 
inquired  of  or  discussed  whether  the  vessel 
should  be  taken  to  St.  Thomas,  or  any  nearer 
port  ? 

A.  Yes,  sir  ;  I  think  it  was  mentioned. 
Q.  What  do  you  mean  by  "  mentioned  ?" 
A.  I  think  the  question  was  asked  by 
some  of  the  officers  ;  the  matter  was  dis- 
cussed among  the  council,  and  we  came  to 
the  unanimous  conclusion,  that  the  vessel 
could  not  be  taken  into  port,  and  that  the 
immediate  execution  was  necessary. 

Q.  Was  it  inquired  of  the  witnesses  be- 
fore the  council  of  officers,  whether  the 
vessel  could  be  taken  into  St.  Thomas,  or 
any  nearer  port  ? 

A.  I  don't  recollect;  the  evidence  as  ta- 
ken down  will  show. 

Q.  Will  the  evidence  show  what  ques- 
tions were  put  ? 

A.  To  the  best  of  my  knowledge  and  be- 
lief, it  will  generally. 

Q.  When  you  came  to  the   conclusion 
that  the  vessel  could  not  be  taken  into  port, 
what  port  had  you  reference  to  ? 
A.  I  had  reference  to  St.  Thomas. 
Q.  In  any  of  your  consultations  with  any 
of  the  officers,  was  this  mutiny  spoken  of 
as  having  been  designed  certainly  to  break 
out  before  the  arrival  at  St.  Thomas  ?  and 
if  so,  with  what  officers. 

A.  I  don't  recollect — my  impression  is, 
that  it  was  the  general  opinion  of  all  the 
officers  and  the  sound  part  of  the  men ;  I 
think  that  it  was  spoken  of — I  am  not  posi- 
tive as  to  the  officers  ;  I  think  Mr.  Rogers 


52 


PROCEEDINGS  OF  THE 


and  Mr.  Perry,  as  well  as  others,  whose 
names  I  do  not  recollect  at  this  time,  ex- 
pressed that  belief. 

Q.  Did  they  give  you  their  reasons  for 
that  belief  ? 

.A.  They  may  have  done  so,  but  I  don't 
recollect  at  this  time. 

Q.  On  the  28th,  or  29th,  or  30th,  did  you 
and  Commander  Mackenzie  examine  the 
chart,  and  discuss  the  practicability  of  ta- 
king the  vessel  safely  into  the  nearest  port. 

A.  We  may  have  examined  the  chart, 
but  I  don't  recollect  any  such  discussion  ; 
I  am  not  sure  as  to  the  examination  of  the 
chart  then  ;  it  was  examined  frequently. 


A.  None  that  I  recollect  at  this  time. 

Q.  What  injuries  had  Mr.  Spencer  done 
you  ? 

A.  None  that  I  know  of,  except  having 
meditated  taking  my  life,  and  taking  the 
vessel  out  of  the  hands  of  her  officers. 

Q.  You  have  spoken  of  the  men  gather- 
ing in  groups,  after  the  arrest  of  Mr.  Spen- 


group,  or 
one  group  at  a 


cer,  how   many  would  be   in 
would  there  be  more  than 
time? 

A.  Yes,  sir ;   I  observed  several  groups 
from  five  to  fifteen,  as  near  as  I  could  judge, 


in  a  group, 
Q.  Did 


sometimes  more. 

you  consider  it  mutinous,  that 


Q.  Did  you,  in  any  of  your  consultations  j  before  the  cause  of  an  officer's  being  in  irons 
with  any  of  the  officers  before  the  execu-  was  explained  to  the  crew,  that  they  should 
tion,  mention  the  likelihood  that  the  prison-  gather  on  the  deck,  that  they  might  look  at 
ers  would  escape  punishment  if  taken  to  him,  and  talk  about  the  probable  cause  1 
the  United  States,  by  the  influence  of  money  Upon  the  question  being  put,  the  accused 
or  of  their  friends  ?  if  so,  name  the  officers,  objected  to  it  as  illegal ;  the  court  was 
Did  the  commander  make  any  such  intima-  j  cleared  to  consider  it ;  on  the  opening  there- 
tion  to  you  ? 

A.  I  did 


not ;  I  don't  recollect  that  the 
commander  made  such  intimation  to  me. 

Q.  Were  Mr.  Spencer,  Cromwell,  and 
Small,  notified  that  an  investigation  was  to 
be  held  ? 

A.  Not  that  I  know  of. 


of,  the  judge  advocate  announced  that  the 
court  had  decided  that  the  question  should 
not  be  put. 

"  The  judge  advocate  was  of  opinion  that 
the  question  was  entirely  legal,  he  having 
an  entire  right  to  put  questions,  that  woulc 


Q.  During  the  time  the  investigation  was    ^strate  the  witnesses  class  of  opinions ; 
„  u~£—  *i :i  ~r  „&»„-„  ,„ lor  it  the  witness  should  answer  that  he 


going  on  before  the  council  of  officers,  were 
Mr.  Spencer,  Cromwell,  and  Small,  inform- 
ed of  it,  and  desired  to  state  if  they  had  any 
questions  to  put  1  or  was  the  evidence  in 
particular  of  any  witnesses  reported  to  them, 
or  either  of  them  ? 

A.  I  don't  know  that  anything  of  that  sort 
was  done. 

Q.  From  the  time  of  his  arrest  to  the  time 
of  his  execution,  did  any  officer  apply  to  the 
commander  or  yourself,  for  permission  to 
explain  to  Mr.  Spencer  his  situation,  and 
what  was  contemplated  in  respect  to  him, 
that  he  might  afford  him  any  friendly  ser- 
vices, to  take  care  of  his  rights  ? 

A.  I  don't  recollect  that  he  did. 

Q.  Was  anything  of  the  like  kind  asked 


would  consider  it  mutinous  for  the  crew  to 
gather  in  groups,  before  the  cause  of  ironing 
an  officer  was  explained  to  them,  it  would 
indicate  his  kind  of  professional  opinions, 
from  which  the  court  could  infer  his  char- 
acter for  judgment. 

"  WILLIAM  H.  NORRIS, 

"  Judge  Advocate" 

At  the  request  of  the  accused,  the  cross- 
examination  of  Lieut.  Gansevoort  was  sus- 
pended, that  the  accused  might  examine 
the  Honorable  Samuel  F.  Holbrook,  of  Bos- 
ton, a  member  of  the  Massachusetts  legis- 
lature, now  in  session,  and  whose  public 
duties  make  it  desirable,  that  he  should  be 
relieved  from  attendance  on  this  court  as 


or  proposed  by  any  of  the  crew,  in  respect  !  speedily  as  practicable. 


to  Cromwell  and  Small  ? 

A.  Not  that  I  know  of. 

Q.  Did  Small,  or  Mr.  Spencer,  tell  you 
what  post  of  command  Small  was  to  have 
under  Mr.  Spencer's  scheme  ? 

A.  Not  that  I  recollect. 

Q.  Did  you  ever  hear  any  mutinous  ex- 
pressions from  Mr.  Spencer  to  the  crew  ? 


Honorable  Samuel  F.  Holbrook,  being 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

BY    COMMANDER    MACKENZIE. 

Q.  What  is  your  name,  and  place  of  res- 
idence, and  your  occupation  ? 

A.  My  name  is   Samuel  F.  Holbrook; 


NAVAL  COURT  MARTIAL. 


53 


my  residence  is  142  Purchase  St.,  Boston ; 
my  occupation,  a  shipwright. 

Q.  Were  you,  or  not,  acquainted  with 
Elisha  Small,  a  late  seaman  on  board  the 
Somers  ?  If  so,  have  you  been  long  ac- 
quainted with  said  Small,  and  with  his  fam- 
ily, and  do  you  know  whether  Small  was 
his  real  name  ? 

A.  I  have  been  acquainted  with  him  for 
many  years ;  he  was  given  to  drink ;  I  al- 
lude to  his  drinking  with  no  intention  of  re- 
flecting on  his  general  character ;  I  am 
likewise  well  acquainted  with  his  father 
and  mother  for  many  years,  and  that  is  his 
name  ;  I  have  known  him  from  a  boy. 

Q.  Did  he  ever,  to  your  knowledge,  pass 
by  the  name  of  Andrews  ? 

A.  Never. 

Q.  Are  you  quite  sure  that  the  person 
whom  you  knew  as  Elisha  H.  Small,  was 
the  seaman  of  that  name  on  board  of  the 
Somers  ?  and  if  so,  state  your  reasons  for 
being  sure  of  it. 

A.  I  knew  at  the  time  he  had  entered  on 
board  of  the  Somers  ;  I  knew  of  frequent 
letters  that  passed  from  him  on  board  of  the 
Somers  to  his  mother  ;  I  know  his  hand- 
writing and  signature.  When  I  heard  of  it 
at  Boston,  and  it  was  promulgated  round 
the  neighborhood,  that  one  of  the  persons 
hung  on  board  of  the  Somers  was  Elisha 
Small,  it  so  happened,  that  I  was  then  re- 
pairing a  vessel  which  he  had  sailed  in 
several  times — 

The  further  answer  of  the  witness  to  that 
question  was  suspended. 

CROSS-EXAMINED  BY  THE    JUDGE  ADVOCATE. 

Q.  How  long  has  it  been  since  Small 
was  under  your  immediate  notice  ? 

A.  I  have  known  him  for  a  number  of 
years  ;  it  has  been  about  two  years  since  he 
was  under  my  immediate  notice.  I  under- 
took to  advise  him  about  his  bad  habit  of 
drinking,  and  told  him  if  he  would  reform, 
I  would  use  my  influence  with  his  employ- 
ers, to  get  him  the  berth  of  chief  mate  of 'a 
vessel,  but  I  am  sorry  to  say,  without  effect. 

Q.  Do  you  know  how  Small  had  disposed 
of  himself,  in  the  two  years  he  was  not  un- 
der your  notice  ? 

A.  He  was  a  great  portion  of  the  time  on 
the  coast  of  Africa,  in  the  employ  of  a  Mr. 
Brookhouse,  of  Salem ;  when  he  left  that 
employ,  he  entered  on  board  the  brig  An- 
gola, owned  by  Mr.  Gardner,  on  India 


wharf,  Boston.  The  brig  was  commanded 
by  Captain  Bell,  and  he  sailed  in  the  ca- 
pacity of  second  officer ;  he  then  left  the 
employ,  came  to  New  York,  and  I  know, 
about  the  time  he  entered  on  board  the  U. 
S.  brig  Somers.  I  knew  he  was  on  board 
last  summer,  and  had  it  in  contemplation  to 
go  on  board  of  her,  but  did  not. 

Q.  Do  you  know  Mr.  Brookhouse  and 
Mr.  Gardner? 

A.  I  am  not  acquainted  with  Mr.  Brook- 
house  ;  I  am  well  acquainted  with  Mr. 
Gardner. 

Q.  Do  you  know  the  chief  ports  Mr. 
Brookhouse  and  Mr.  Gardner's  vessels  went 
to  ?  and  what  was  the  trade  of  their  voyage  ? 

A.  I  don't  know  positively,  as  respects 
the  port ;  the  business  was  chiefly  trading ; 
Small  remained  some  time  in  the  employ 
of  Mr.  Brookhouse  as  an  agent  on  the  coast ; 
to  what  extent  the  agency  was,  I  don't 
know ;  his  father  told  me  he  was  likely  to 
do  well. 

Q.  Do  you  know,  or  not,  whether,  during 
this  period  of  two  years,  Small  did  not  as- 
sume or  say  that  his  name  was  E.  An- 
drews ? 

A.  I  had  never  any  knowledge  to  that 
effect. 

The  examination  of  Mr.  Holbrook  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Lieut.  Gansevoort  recalled. 

Q.  You  have  spoken  of  the  three  cheers 
that  were  given  after  the  execution,  and 
their  effect  on  the  officers  and  crew,  did 
that  relieve  your  mind  of  the  impression, 
that  two  thirds  of  the  crew  were  disaf- 
fected ? 

A.  It  relieved  my  mind,  but  did  not  re- 
lieve my  mind  as  to  the  number  who  were 
disaffected. 

Q.  When  was  Waltham  punished,  and  at 
whose  report  ? 

A.  I  think  on  the  28th  or  29th — the  log- 
book will  show ;  and  I  think  at  my  report. 

Q.  Who  reported  him  to  you? 

A.  I  think  the  mess-boy,  Robbins,  men- 
tioned that  he  had  taken  the  liquor. 

Q.  Did,  or  did  not  M'Kinley  report  him, 
when  he  was  flogged  at  one  of  those  dates  ? 

A.  I  think  he  did,  for  concealing  four  bot- 
tles of  wine,  which  I  found  when  he  told  me. 

Q.  Were  not  Waltham  and  M'Kinley's 
names  both  on  Mr.  Spencer's  paper,  as  he 
translated  it  to  you  ? 


54 


PROCEEDINGS  OF  THE 


A.  I  believe  they  were  ;  M'Kinley's  I  am 
sure  of,  and  I  think  Waltham's. 

Q.  Turn  to  the  log-book,  and  see  the  date 
on  which  M'Kinley  reported  Waltham? 

A.  On  the  28th  astronomical  time,  the 
log-book  states  that  Waltham  was  punished 
on  M'Kinley's  report,  but  the  log-book  does 
not  state  when  the  report  was  made. 

Q.  Did  you,  after  the  28th,  suppose  Wal- 
tham and  M'Kinley  in  a  conspiracy  together, 
to  rescue  the  prisoners  ? 

A.  I  supposed  they  were  engaged  with 
the  rest  of  those  I  suspected. 

Q.  Did  you  hear  Mr.  Spencer  ask  Com- 
mander Mackenzie,  after  he  (Mr.  Spencer) 
had  been  told  that  he  was  to  be  executed  in 
ten  minutes,  whether  the  commander  had 
not  exaggerated  notions  of  the  extent  of  the 
conspiracy,  whether  he  had  law  for  what  he 
was  doing,  and  whether  he  was  not  going 
too  fast? 

A.  I  think  I  heard  the  last  part  of  that 
question,  when  he  asked  if  he  was  not  too 
hasty,  or  words  to  that  effect. 

Q.  Did  you  ever  afterward  hear  Com- 
mander Mackenzie  admit,  that  Mr.  Spencer 
had  asked  him  then,  if  he  had  not  exagger- 
ated notions  of  the  extent  of  the  conspiracy  ? 

A.  I  don't  recollect  that  I  did. 

Q.  Had  you  any  idea  before  the  26th  of 
November,  of  an  intended  mutiny  ? 

A.  No,  sir. 

Q.  You  have  stated  that  the  discipline 
of  the  brig  declined  after  leaving  Madeira ; 
will  the  log-book  show  the  punishment  of 
the  whole  cruise  ? 

A.  I  believe  it  will. 

Q.  Have  you  been  at  one  time  convinced 
that  Mr.  Spencer  had  arranged  this  mutiny 
before  he  left  New  York,  and  had  confede- 
rates not  aboard  the  Somers  ?  if  so,  is  that 
still  your  opinion  1 

A.  I  believe  the  thing  was  thought  of  by 
Mr.  Spencer  before  he  left  New  York ;  I 
don't  know  as  to  his  confederates  ;  I  believe 
now  that  he  had  this  project  in  his  mind 
before  he  left  New  York  ;  my  impression  is 
that  he  had  confederates  not  on  board,  from 
what  I  heard  since  we  arrived  here. 

Q.  What  was  the  conduct  of  Commander 
Mackenzie  to  his  crew — humane,  or  other- 
wise ? 

A.  Humane — exceedingly  kind. 

Q.  Did  he,  or  not,  administer,  in  the  gen- 
eral discipline  of  the  brig,  undeserved  pun- 
ishment ? 


A.  No,  sir ;  not  to  my  knowledge  or  be- 
lief. 

BY  THE  COURT. 

Q.  Were  you,  or  were  you  not  satisfied, 
when  all  the  preparations  for  execution  were 
complete,  that  the  officers  had  entire  com- 
mand of  the  crew  and  vessel  ? 

A.  No,  sir,  I  was  not ;  I  was  very  un- 
easy ;  I  considered  it  a  critical  time  with 
us. 

Q.  Before  the  arrest  and  ironing  of  Mr. 
Spencer  had  been  explained  to  the  crew,  do 
you  consider  the  conversations  of  the  crew 
in  groups  on  the  decks,  as  evidence  of  a 
mutinous  disposition  ? 

A.  I  did,  sir ;  and  I  believe  that  either 
Mr.  Spencer  or  Small  had  made  his  plot 
known  to  at  least  twenty  of  the  crew. 

Q.  You  stated  that  you  felt  gratified  that 
you  did  not  fire  when  the  men  rushed  aft, 
as  you  might  have  killed  an  innocent  man. 
Did  you  believe  that  all  were  innocent  of 
rushing  aft  with  mutinous  designs  ? 

A.  No,  sir. 

Q.  Charge  your  memory  particularly,  and 
say  whether  or  not  you  have  any  other  rea- 
sons for  believing  Cromwell  engaged  in  the 
plot  with  Mr.  Spencer,  other  than  those  you 
have  already  stated. 

A.  .His  manner  at  Madeira,  in  getting  in 
water  and  provisions,  was  sullen  and  disre- 
spectful ;  there  were  no  officers  on  board 
but  Mr.  Wales,  Mr.  Spencer,  and  myself; 
he  growled  about  the  amount,  of  duty,  and, 
I  think,  said  it  was  "  damned  hard  usage." 
When  1  would  give  him  an  order,  instead  of 
executing  it  as  he  had  done  heretofore,  he 
merely  repeated  it  in  a  disrespectful  manner, 
showing  no  disposition  to  see  it  executed. 
At  another  time,  while  at  sea,  they  were 
hauling  down  the  jib  ;  the  lacing  jammed  on 
the  stay ;  he  said,  "  God  damn  the  jib  and 
the  lacing,  and  the  damned  fool  that  invented 
it ;"  he  knew  the  commander  was  the  in- 
ventor of  it,  because  I  told  him  so  before  ; 
I  reproved  him  severely  at  the  time,  and  he 
was  disrespectful  and  sullen  ;  I  think  Sail- 
ing-Master Perry  was  on  the  forecastle  at  the 
time.  At  another  time,  the  morning  after 
Mr.  Spencer  was  confined,  I  think,  I  asked 
him  if  he  had  been  aloft  to  examine  the 
rigging,  as  he  was  in  the  habit  of  doing 
whenever  he  had  the  morning  watch  ;  his 
manner  was  exceedingly  disrespectful,  so 
much  so  as  to  be  noticed  by  King,  who 


NAVAL  COURT  MARTIAL. 


55 


mentioned  it  to  me  afterward;  I  think  I 
swore  at  him,  and  ordered  him  to  go  aloft 
and  report  to  me  ;  he  did  not  report  to  me. 
At  another  time,  when  I  ordered  the  petty 
officers  aft  to  the  mainmast,  after  Mr.  Spen- 
cer was  confined,  I  asked  them  each  if  they 
knew  anything  about  that  plot  of  Mr.  Spen- 
cer's, Cromwell's  manner  was  entirely  dif- 
ferent from  that  of  any  of  the  other  men ; 
was  embarrassed,  and  looked  guilty  ;  I  think 
his  manner  was  observed  by  Mr.  Delonde 
and  Mr.  Tillotson.  He  would  fly  into  vio- 
lent fits  of  passion  at  different  times  be- 
tween Madeira  and  up  to  the  time  of  his 
confinement,  and  would  blaspheme  outrage- 
ously ;  his  whole  character  appeared  to  be 
changed ;  he  showed  an  absent  mariner  ;  I 
recollect  once  he  was  sitting  on  the  leeside 
of  the  forecastle  hatch  ;  I  ordered  him  seve- 
ral times  to  pipe  the  bags  down  ;  he  got  up 
very  leisurely,  and  repeated  the  order,  and 
sat  down  again,  leaving  his  own  bag  on 
deck  ;  this  is  all  I  recollect  at  this  time. 

The  examination  of  Lieutenant  Ganse- 
voort  was  here  suspended.  His  evidence 
was  read  to  him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Thursday),  Feb.  16th,  at  10  o'clock, 
A.M. 


NAVY  YARD,        > 
Brooklyn,  Feb.  16,  1843.  J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,          Com'dr  Ogden, 

Smith,  "       Shubrick, 

"       Storer,  Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Lieutenant  Gansevoort  recalled. 

BY    THE    COURT. 

Q.  When  Cromwell  took  leave  of  you 
and  asked  your  forgiveness,  did  he  ask  you 
to  tell  any  person  at  home  that  he  died  in- 
nocent of  the  crime  charged  ? 

A.  He  did  not  at  that  time. 


insubordinate  conduct  of  Cromwell  at  the 
time  ? 

A  I  don't  think  I  did. 

Q.  In  your  experience,  is  it  usual  for  a 
boatswain's  mate  or  the  best  seaman  to  go 
aloft  on  an  emergency  such  as  carrying 
away  a  mast  ? 

A.  I  think  not,  without  they  are  ordered. 

Q.  Were  there  any  men  aloft  at  the  car- 
rying away  of  the  maintop-gallantmast  of 
the  Somers,  out  of  place,  or  not  stationed  in. 
the  maintop,  and  not  suspected  of  mutiny  ? 

A.  At  the  time  the  mast  was  carried 
away  I  was  not  on  deck,  but  I  ordered 
Anderson,  the  captain  of  the  forecastle,  to 
go  aloft,  they  were  so  dilatory  there  ;  I  don't 
recollect  seeing  any  one  aloft  that  I  did  not 
suspect. 

Q.  What  induced  you  to  order  Anderson 
aloft  when  the  mast  was  carried  away  ? 

A.  On  account  of  the  dilatory  motions 
there ;  no  one  but  Gedney  seemed  doing 
anything. 

Q.  In  what  state  were  the  irons  of  the 
Somers  ?  Were  they  adequate  to  securing 
prisoners  ? 

A.  The  irons  were  such  as  are  usually 
on  board  of  a  man-of-war ;  the  hand-cuffs 
were  not  secure ;  I  think  they  could  be 
easily  knocked  off. 

Q.  Did  or  did  not  the  knots  of  persons 
gathered  round  the  deck,  after  the  arrest  of 
Spencer,  consist  of  the  small  boys  either  in 
whole  or  in  part  ? 

A.  To  the  best  of  my  recollection  the 
larger  boys. 

Q.  Do  you  know  whether  or  not  the  men 
aloft  were  waiting  to  receive  anything  from 
the  deck,  after  the  occurrence  to  the  mast  ? 

A.  They  did  not  ask  for  anything  that  I 
recollect,  but  when  I  sent  Anderson  up, 
he  came  down  immediately  and  got  a  tail- 
block. 

Q.  Did  you  see  other  officers  beside  Mr. 
Spencer  have  their  arms  pricked  with  India 
ink? 

A.  None  that  I  recollect. 

BY  CAPTAIN  PAGE. 

Q.  Was  there  or  was  there  not  any 
appearance  of  insubordination  among  the 
smaller  boys  ? 

A.  There  was  disobedience  of  small  or- 
ders, such  as  not  taking  care  of  their  clothes 
and  chewing  tobacco  ;  the  discipline  of  the 


Q.  Did  you  report  to  the  commander  the  |  vessel  appeared  to  be  affected  throughout. 


56 


PROCEEDINGS  OF  THE 


Q.  What  proportion  of  small  boys  were 
there  among  the  crew  of  the  Somers  ? 

A.  Perhaps  a  quarter ;  the  descriptive 
list  will  show  their  ages. 

Q.  Did  you  ask  Midshipman  Spencer 
anything  respecting  the  three  names,  Geo. 
A.  Breast,  Frederick  Wills,  and  Edward 
Roberts  ? 

A.  I  don't  think  I  showed  him  that  pa- 
per ;  it  was  tucked  up  in  the  upper  part  of 
his  razor-case. 

BY  CAPTAIN   GWINN. 

Q.  Did  you  see  in  Commander  Macken- 
zie, during  the  difficulties,  any  traces  of  un- 
manly fear,  of  a  despotic  temper,  or  any 
conduct  unbecoming  an  American  officer  ? 

A.  I  did  not ;  on  the  contrary,  his  course 
was  that  of  a  brave  man  and  good  officer — 
such  as  to  inspire  us  with  high  respect  for 
him  as  an  officer  and  warm  friendship  for 
him  as  a  man. 

Q.  After  the  discovery  of  the  intended 
mutiny,  and  before  the  execution  of  the 
ringleaders,  was  the  Somers  in  a  state  to 
sustain  the  honor  of  the  American  flag,  on 
the  event  of  her  going  into  action  ? 

A.  No,  sir,  she  was  not. 

BY   CAPTAIN  STOKER. 

Q.  Was  Cromwell  known  to  be  a  native 
of  this  country  ? 

A.  I  can't  say ;  I  think  he  told  me  he 
was  born  in  Virginia. 

BY    CAPTAIN    PAGE. 

Q.  When  you  speak  of  the  force  of  taking 
care  of  the  prisoners,  do  you  or  not  have  in 
your  mind  the  warrant  and  commissioned 
officers  alone  ? 

A.  The  warrant  and  commissioned  offi- 
cers, and  some  of  the  petty  officers  who 
were  true. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Was  Cromwell  punished  for  any  of 
the  insubordinate  conduct  you  have  men- 
tioned ? 

A.  No,  sir,  I  believe  not,  except  by  my 
severe  reproval ;  my  reasons  for  not  report- 
ing him  were,  that  his  services  were  very 
important  to  the  vessel  as  boatswain's  mate  ; 
we  had  no  one  to  fill  his  place  without  crip- 
pling some  other  part  of  the  vessel ;  Crom- 
well was  chief  boatswain's  mate,  and  did  all 
the  duty  of  a  boatswain,  a  vessel  of  that 
class  not  being  allowed  a  boatswain. 


Q.  Have  you  not  seen  similar  misbe- 
havior to  that  you  have  mentioned  as  having 
come  from  Cromwell,  in  other  seamen  aboard 
of  other  vessels,  without  their  being  in  a 
mutiny  ? 

A.  No,  sir,  not  a  regular  system  continu- 
ously. 

Q.  If  this  conduct  was  so  continuous  and 
unusual,  how  comes  it  you  did  not  report  it  ? 

A.  I  stated  that  before. 

Q.  Did  you  regard  it  at  that  time  as 
mutinous  ? 

Q.  I  regarded  it  as  highly  insubordinate  > 
I  did  not  know  of  a  mutiny  at  that  time,  or 
I  should  have  regarded  it  as  such. 

BY  CAPTAIN    SMITH. 

Q.  Did  Cromwell  at  any  time  ask  you  to 
tell  any  person  at  home  that  he  was  inno- 
cent ?  if  yea,  when,  and  to  whom  ? 

A.  Shortly  after  the  commander  had  made 
it  known  to  those  two  men  that  they  were 
to  die,  he  told  me  to  tell  them  that  if  they 
had  any  messages  to  send,  that  I  would 
take  them ;  I  asked  Cromwell,  and  he  said 
he  supposed  his  bag  and  hammock,  or  bag 
and  clothes,  I  am  not  certain  which,  would 
go  to  his  wife  ;  I  said  "  Yes,  I  suppose  so," 
and  then  said  to  him,  "  have  you  no  mes- 
sages to  send  to  that  wife  ?"  he  said,  "  Tell 
my  poor  old  father,"  or  father-in-law,  I 
don't  know  which,  "  that  I  die  innocent  to 
the  last :"  that  is  as  near  as  I  can  recollect. 

BY  THE  JUDGE   ADVOCATE. 

Q.  Did  he  at  any  time  tell  you  to  tell 
Lieutenant  Morris  that  he  died  innocent  ? 
and  if  so,  when  ? 

A.  I  don't  recollect  distinctly  ;  I  think 
he  said  something  of  that  sort  when  in  the 
gangway,  about  to  be  hung ;  I  am  not  cer- 
tain that  he  addressed  me  :  my  belief  is 
that  he  did  say  so. 

Q.  Is  it  not  your  opinion,  that  during  the 
troubled  state  of  the  brig,  if  an  action  had 
impended,  that  such  facts  would  waken  the 
crew  to  a  sense  of  their  duty  ? 

A.  No,  sir,  I  don't  believe  it  would ;  my 
impression  is  that  they  would  have  taken 
charge  of  her  and  run  away  from  an  enemy ; 
she  is  a  fast  vessel,  and  I  have  frequently 
heard  Cromwell  speak  of  her  speed. 

Q.  After  the  occurrence  to  the  mast,  did 
you  charge  the  men  who  had  been  aloft 
with  having  been  idle  and  dilatory  ?  and,  if 
so,  what  was  their  answer  ? 


NAVAL  COURT  MARTIAL. 


57 


A.  I  don't  recollect  that  I  did  ;  I  think  I 
spoke  to  them  while  aloft,  and  I  think  the 
commander  spoke  to  me,  which  prevented 
my  speaking  again. 

Q.  Did  you  afterward,  at  any  time,  charge 
either  Cromwell  or  Small  with  having  been 
in  a  plotting  conversation  aloft,  after  the 
occurrence  to  the  mast?  and  if  so,  what 
was  the  answer  of  each  or  either  ? 

A.  I  don't  think  I  did  charge  them. 

Q.  Did  you  not,  after  the  arrest  of  Mr. 
Spencer,  believe  almost  all  the  grown  sea- 
men, except  the  petty  officers,  as  his  accom- 
plices in  the  mutiny  ? 

A.  Not  all ;  I  had  suspicions  that  were 
awakened  afterward. 

Q.  Were  not  the  battle-axes  within  two 
feet  to  where  Mr.  Spencer  sat  ironed  ? 

A.  He  leaned  his  back  against  them 
sometimes. 

Q.  At  the  time  Mr.  Spencer  told  you  he 
would  have  a  conversation  with  you,  when 
his  mind  was  in  a  suitable  state,  was  he  not 
in  tears  ? 

A.  I  don't  recollect. 

Q.  Did  Mr.  Spencer  read  while  in  con- 
finement, or  did  he  sit  idle  as  far  as  employ- 
ment was  concerned  ? 

A.  He  sat  idle,  I  think. 

BY    COMMANDER    MACKENZIE. 

State  all  you  know  or  ever  heard  of  the 
conversation  between  the  commander  and 
Mr.  Spencer  when  the  commander  informed 
him  of  his  fate. 

A.  I  don't  recollect  to  have  heard  any- 
thing but  his  reply — "  Are  you  not  hasty  in 
this  matter  ?"  or  something  to  that  effect. 

Q.  When  Mr.  Spencer  was  arrested  and 
his  cravat  searched,  did  he  admit  that  he 
had  a  paper  in  the  back  of  his  cravat. 

A.  Yes,  sir. 

Q.  Were  you  present  when  Mr.  Spencer 
and  Cromwell  passed  each  other  near  the 
pump-well,  on  their  way  to  the  place  of 
execution  ?  if  so,  state  whether  Mr.  Spen- 
cer said  anything  about  the  innocence  of 
Cromwell ;  whether  Cromwell  then  ap- 
pealed to  Mr.  Spencer  to  attest  his  inno- 
cence. 

A.  I  was  present  at  the  time  ;  Mr.  Spen- 
cer did  not  say  anything  about  the  inno- 
cence of  Cromwell,  and  Cromwell  did  not 
to  my  knowledge  appeal  to  Mr.  Spencer. 

Q.  At  the  time  when  Mr.  Spencer  so 
earnestly  besought  the  forgiveness  of  Small, 
8 


did  Mr.  Spencer  make  any  effort  to  save 
Cromwell  from  execution,  or  evince  any 
compunction  or  regret  on  account  of  Crom- 
well? 

A.  No,  sir,  none  that  I  saw,  whatever. 

Q.  The  judge  advocate  has  asked  you 
some  questions  with  respect  to  the  relatives 
and  connexions  of  Commander  Mackenzie  ; 
be  good  enough  to  state  whether  the  young 
gentlemen,  to  whom  he  thus  alluded  were 
treated  by  the  commander  with  any  special 
indulgence. 

A.  No,  sir,  I  think  on  the  contrary ;  they 
were  treated  with  more  severity. 

Q.  At  the  time  when  Commander  Mac- 
kenzie assented  to  Mr.  Spencer's  applying 
to  be  detached  from  the  Somers,  did  he  also 
desire  that  another  young  midshipman,  who 
had  been  recently  ordered  to  the  Somers, 
might  be  detached  to  make  room  for  older 
and  more  useful  midshipmen  ? 

A.  Yes,  sir — Mr.  Tillotson. 

Q.  Was  there  a  written  routine  of  duty, 
as  it  was  to  be  carried  on,  on  board  the 
Somers  ?  did  it,  in  conformity  with  the  order 
of  the  navy  department,  forbid  the  use  of 
tobacco  to  the  apprentices,  and  were  the 
midshipmen  obliged  to  copy  this  routine 
into  their  journals  ? 

A.  There  was  a  routine  ;  the  apprentices 
were  prohibited  the  use  of  tobacco;  and,  in 
compliance  with  the  commander's  orders,  I 
ordered  the  midshipmen  to  copy  it  into  the 
watch-bills  for  the  use  of  the  officer  of  the 
deck. 

Q.  After  the  discovery  of  Mr.  Spencer's 
plot,  is  it  or  is  it  not  your  belief,  from  all 
that  you  saw  and  observed,  that  it  went  on 
gathering  strength  of  itself,  with  or  without 
the  direct  agency  of  Mr.  Spencer  ? 

A.  Yes,  sir,  [  believe  it  did  go  on  gather- 
ing strength  after  his  arrest,  but  I  do  not 
know  what  agency  he  had  in  it. 

Q.  At  the  time  of  swaying  up  the  top- 
gallantmast,  was  not  the  deportment  of  the 
crew  in  thus  tramping  as  they  came  aft, 
though  ordered  to  come  aft  by  Midshipman 
Rogers,  in  a  high  degree  disrespectful  and 
disorderly  ? 

A.  I  considered  it  so. 

Q  Is  such  a  mode  of  moving  from  one 
part  of  a  ship-of-war  to  another,  and  es- 
pecially in  approaching  the  quarter-deck 
usual  or  allowable  ?  did  you  ever  know  an 
instance  of  it  before  in  the  service  ? 

A.  Not  usual  or  allowable  on  board  of 


58 


PROCEEDINGS  OF  THE 


any  vessel  I  have  ever  been  in,  and  I  have 
never  known  before  of  an  instance  in  near 
twenty  years'  service. 

Q.  Did  you  or  did  you  not  see  any  indi- 
cations of  a  mutinous  disposition  on  the 
part  of  the  crew  subsequent  to  the  arrest 
of  Cromwell  and  Small,  and  of  an  inten- 
tion to  make  an  attack  on  the  officers  ? 

A.  Yes,  sir,  I  believe  I  did. 

Q.  During  the  confinement  of  Mr.  Spen- 
cer, Cromwell,  and  Small,  did  you  observe 
in  the  prisoners  a  confident  or  dejected  air? 

A.  A  confident  air,  which  did  not  change 
until  told  they  were  to  die. 

Q.  Were  you  or  were  you  not  of  opinion, 
formed  by  observation  of  what  was  occur- 
ring around  you,  the  size  of  the  vessel,  the 
small  numbers  of  the  officers,  and  other 
circumstances,  that  had  an  outbreak  been 
attempted  by  mutineers  on  a  dark  night  or 
during  a  squall,  it  would  have  been  suc- 
cessful ? 

A.  I  had  no  doubt  of  it  at  all. 

Q.  Did  the  cheers  given  by  the  crew  af- 
ter the  execution,  when  ordered  to  cheer, 
change  your  conviction  that  from. one  half 
to  two  thirds  had  been  more  or  less  con- 
cerned in  the  mutiny  ? 

A.  No,  sir,  it  did  not  change  my  mind 
as  to  the  disaffected  in  number. 

Q.  What  effect  appeared  to  be  produced 
by  the  execution  on  the  minds  of  those  at 
large  suspected  of  being  concerned  in  it  ? 

A.  They  appeared  to  be  relieved  at  the 
time — at  the  moment. 

Q.  You  said,  on  your  cross-examination, 
that  you  did  not  recollect  whether,  in  any 
of  your  conversations  with  any  of  the  offi- 
cers, you  mentioned  the  likelihood  that  the 
prisoners  would  escape  if  taken  to  the 
United  States,  by  the  influence  of  money 
or  their  friends ;  are  you  or  are  you  not 
certain  that  no  such  intimation  was  made 
by  you,  or  by  the  commander  to  you,  or  to 
any  of  the  officers  in  your  hearing  ? 

A.  I  am  certain  that  I  never  heard  of  it, 
to  the  best  of  my  knowledge  and  belief. 

Q.  You  have  said  on  your  cross-exami- 
nation, that  you  do  not  recollect  whether 
Small  stated  to  you,  in  your  conversation 
with  him  about  Cromwell,  that  there  was  a 
plot  for  taking  the  vessel.  Did,  or  did  not 
Small  ever  in  your  hearing  deny  the  ex- 
istence of  such  a  plot  ? 

A.  No,  sir;  he  never  did. 

Q.  You  have  said  that,  from  the  discov- 


ery of  the  mutiny  to  the  execution,  the  Som- 
ers  could  not  have  gone  into  action  with  a 
prospect  of  sustaining  the  honor  of  the 
American  flag.  After  the  execution,  could 
she  have  gone  into  action  with  a  better 
prospect  of  sustaining  that  honor  ? 

A.  I  think  the  prospect  was  better. 

Q.  Had  the  Somers,  while  in  the  disor- 
derly condition  preceding  the  execution, 
fallen  in  with  the  confederate  whom,  ac- 
cording to  Mr.  Wales's  testimony,  Mr. 
Spencer  expected  to  meet  at.  the  Isle  of 
Pines,  or  other  pirate,  what  dependance 
could  have  been  placed  on  the  crew  to  re- 
sist such  pirate  ? 

A.  No  dependance  whatever. 

Q.  You  have  mentioned  that,  on  the  mor- 
ning of  the  28th  November,  the  log-book 
records  a  sail  in  sight  on  the  larboard  bow. 
Had  that  sail  been  an  American,  or  other 
merchant  vessel,  in  distress  from  a  mutinous 
state  of  her  crew,  or  from  other  causes,  and 
had  she  hauled  up  for  the  Somers,  and  ask- 
ed for  assistance  or  protection,  what  assist- 
ance or  protection  could  the  Somers  have 
rendered  such  distressed  merchant  vessel  ? 

A.  I  don't  think  she  could  have  rendered 
her  any  with  safety  to  our  own  vessel. 

Q.  How  much  time  were  they  employed  ? 
how  much  sleep  did  they  get?  were  not 
their  duties  unusually  exhausting  and  labo- 
rious ?  What  was  the  nature  of  the  duties 
performed  by  the  officers  previous  to  the 
execution  ? 

A.  To  take  care  of  the  vessel  and  the 
prisoners,  and  to  guard  the  vessel  generally ; 
they  were  by  far  the  most  of  their  time  on 
the  deck,  circulating  among  the  crew ;  they 
got  very  little  rest — that  disturbed  and  not 
refreshing  ;  their  duties  were  unusually  ex- 
hausting and  laborious. 

Q.  Did  the  commander  share  those  du- 
ties ? 

A.  Yes,  sir;  he  was  almost  all  the  time 
on  deck — more  on  deck  than  any  other  offi- 
cer. 

Q.  What  was  the  condition  of  the  officers 
of  the  Somers  as  to  strength  or  exhaustion 
at  the  time  of  the  execution  ? 

A.  Almost  worn  out. 

Q.  How  much  longer  could  the  officers 
and  petty  officers  have  held  out  keeping 
watch,  and  watch  carrying  a  heavy  weight 
of  arms,  and  never  sitting  down  in  their 
watch  ? 

A.  Twenty-four  or  thirty-six  hours  prob- 


NAVAL  COURT  MARTIAL. 


59 


ably ;  the  younger  part  of  the  officers  I  don't 
think  so  long. 

Q.  What  was  the  usual  course  of  disci- 
pline on  board  the  Somers  with  regard  to 
offences  and  punishments  ? 

A.  They  were  reported  to  the  officer  of 
the  deck,  then  to  me  ;  I  had  them  entered 
on  the  morning  report ;  I  handed  the  report 
to  the  commander  in  the  morning  when  I 
reported  the  vessel  ready  for  inspection. 

Q.  Before  having  offences  placed  on  the 
morning  report,  did  you  first  investigate 
such  offences  yourself,  and  dismiss  all  that 
were  frivolous,  or  for  which  punishment 
could  be  avoided  ? 

A.  Usually  so;  if  not,  it  was  investiga- 
ted at  the  gangway  when  they  were  brought 
up  for  punishment. 

Q.  Were  any  offences  punished  on  board 
the  Somers  that  were  not  punished  in  other 
ships  ? 

A.  None  that  I  know  of. 

Q.  Was  there  on  the  part  of  the  com- 
mander a  reluctance  or  desire  to  inflict  pun- 
ishment ? 

A.  A  great  reluctance  ;  he  allowed  many 
offences  to  pass  that  I  would  have  punished, 
had  I  had  the  authority. 

Q.  What  sort  of  cats  and  colts  were  used 
on  board  the  Somers  ?  Were  they  lighter 
or  heavier  than  is  usual  in  the  service  ? 

The  cats  and  colts  were  here  produced. 

A.  The  usual  size  for  the  men,  and  lighter 
ones  for  the  boys,  with  some  of  the  tails 
stopped  back — four,  I  think,  were  stopped 
back  ;  the  colt  was  lighter  than  that  usually 
on  board  of  a  man-of-war.  The  colt  is  a 
piece  of  rope  larger  than  a  quill,  and  not  so 
large  as  your  little  finger  ;  they  were  pun- 
ished over  the  clothes  they  happened  to 
have  on,  with  the  exception  of  the  jacket ; 
I  have  seen  the  persons  have  on  two  or  three 
shirts  when  punished,  though  I  have  seen 
all  removed  but  one  on  board  of  other  ves-, 
sels. 

Q.  Was  any  one  officer  or  petty  officers 
allowed  to  maltreat  the  crew  by  word  or 
blow  ?  was,  or  was  not  every  individual  safe 
from  punishment,  or  free  from  censure,  while 
he  kept  within  the  limits  of  the  law  ? 

A,  There  was  no  one  allowed  to  abuse 
them,  either  by  word  or  blow  ;  and  while 
they  behaved  themselves,  they  were  safe 
from  punishment. 

Q.  Was  any  distinction  made  by  Com- 
mander Mackenzie  in  the  treatment  of  the 


crew  ?  Do  you  know  of  his  having  a  sin- 
gle favorite  ? 

A.  No  distinction,  and  I  don't  know  of 
any  favorite. 

Q.  Was  every  one  who  was  zealous  in 
the  discharge  of  his  duty  secure  of  appro- 
bation arid  encouragement,  and  promotion 
so  far  as  authority  vested  in  the  comman- 
der ? 

A.  I  believe  there  were  many  of  them 
rated  who  deserved  it ;  they  were  secure 
of  promotion  and  approbation,  if  merited. 

Q.  Was  attention  paid  on  board  the  Som- 
ers to  the  health,  comfort,  and  happiness  of 
the  crew  1 

A.  Great  attention  was  paid  to  the  health, 
comfort,  and  happiness  of  the  crew. 

Q.  Did  the  crew  of  the  Somers,  about  the 
time  of  her  arrival  at  Madeira,  seem  to  be 
happy  and  joyous,  or  otherwise  ? 

A.  Up  to  that  time  happy  and  contented. 

Q.  Was  attention  paid  to  training  them 
by  exercise,  and  by  firing  at  a  target  with 
the  great  guns,  with  muskets,  and  with  pis- 
tols ?  to  the  exercise  of  the  broad-sword  ? 

A.  Yes,  sir. 

Q.  Were  efforts  made  to  instruct  them  in 
their  duty,  advance  their  education,  to  carry 
out  the  benevolent  views  of  the  Secretary 
of  the  Navy  with  regard  to  the  apprentices  ? 

A.  Yes,  sir. 

Q.  Was  care  taken  to  prevent  the  expo- 
sure of  the  apprentices  to  danger  in  heavy 
or  squally  weather  ?  Was  the  commander 
indifferent  to,  or  solicitous  about  the  safety 
of  the  crew  ? 

A.  Great  care  taken,  and  very  solicitous 
about  the  health  and  safety  of  the  crew. 

Q.  What  proportion  of  the  crew  of  the 
Somers  had  never  been  to  sea  before  they 
sailed  in  the  Somers  for  Porto  Rico  in 
June  ? 

A.  I  don't  know  what  proportion  ;  by  far 
the  greater  proportion,  I  believe. 

Q.  Was  the  watch  on  deck  always  equal 
to  the  care  of  the  vessel  in  the  night  ? 

A.  The  watch  always  took  care  of  the 
vessel  in  the  night,  except  on  one  occasion, 
beating  up  to  New  York,  I  believe. 

Q.  When  we  reached  our  port  in  the 
night,  was  the  Somers  brought  to  anchor 
with  the  watch,  or  was  the  watch  below 
turned  up  ?  What  was  the  practice  in  this 
respect  on  our  arrival  at  Liberia  and  St. 
Thomas  ? 

A.  I  believe  the  watch  brought  her  to. 


60 


PROCEEDINGS  OF  THE 


Q.  How  was  the  Somers  handled,  under 
all  circumstances,  by  her  crew  of  apprenti- 
ces by  the  time  of  her  arrival  on  the  coast 
of  Africa — smart,  or  otherwise  ? 

A.  Smartly,  considering  the  crew. 

Q.  Was  the  Somers,  at  the  time  of  her 
arrival  on  the  coast  of  Africa,  a  well-order- 
ed and  efficient  man-of-war  ? 

A.  At  the  time  of  her  arrival  at  Madeira, 
I  considered  her  so ;  and  on  the  coast  of 
Africa,  as  far  as  fixtures  went,  I  did  then 
consider  her  so. 

Q.  Do  you  know  of  any  law  of  Congress 
for  the  government  of  the  navy,  any  order 
of  the  navy  department,  any  regulation  of 
the  navy  commissioners,  that  was  not  per- 
petually enforced  on  board  the  Somers  ? 

A.  No,  sir  ;  I  do  not. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Was  not  the  message  to  Lieut.  Mor- 
ris by  Cromwell,  and  his  protestations  of 
innocence  in  the  gangway,  after  Cromwell 
had  passed  Mr.  Spencer  at  the  pump-well  ? 

A.  I  believe  it  was. 

Q.  How  long  after  the  last  protestation 
of  his  innocence  by  Cromwell  that  you 
heard  was  he  hanged  ? 

A.  A  short  time,  a  few  minutes. 

BY    CAPTAIN    BOLTON. 

Q.  What  time  elapsed  between  the  ap- 
plication of  the  ropes  to  the  prisoners'  necks 
and  their  suspension  1 

A.  Some  few  minutes;  they  were  not 
immediately  run  up  ;  to  the  best  of  my 
knowledge  arid  belief,  three  or  four  min- 
utes ;  during  which  time  Mr.  Spencer  was 
talking  to  Browning,  the  boatswain's  mate, 
I  believe. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Have  you  not  stated  in  this  examina- 
tion that  you  never  asked  Small  if  he  was 
engaged  in  a  plot  with  any  one  on  Mr. 
Spencer's  list,  but  Mr.  Wales  and  Mr. 
Spencer  ? 

A.  I  believe  I  have  ;  I  think  I  asked 
Small ;  I  am  not  certain  that  I  asked  Small, 
or  Mr.  Spencer,  "  who  that  foretop-man 
meant ;"  I  am  under  the  impression  that  I 
asked  one  or  the  other ;  I  am  not  positive. 

Q.  Did  either  Small  or  Mr.  Spencer  tell 
you  who  that  foretop-man  was  ? 

A.  No,  sir. 


BY    CAPTAIN    BOLTON. 

Q.  WTere  the  prisoners  hung  in  mana- 
cles ? 

A.  Yes,  sir. 

Q.  Upon  reflection,  did  not  Mr.  Spencer 
endeavor  to  persuade  you  that  he  had  said 
that  maintop-man,  instead  of  "  that  foretop- 
man,"  and  that  he  had  reference  to  ISt'Kin- 
ley,  who  was  down  in  the  lists  as  certain  ? 

A.  I  don't  recollect ;  my  memory  upon 
that  matter  is  indistinct. 

Q.  Subsequent  to  the  preparations  fo-r 
the  execution  being  complete,  was  not  time 
allowed  to  Small  to  address  his  shipmates  ; 
and  did  not  a  considerable  additional  inter- 
val elapse,  during  which  Mr.  Spencer  might 
have  stated  anything  he  desired  to  state  be- 
fore the  execution  actually  took  place  ? 

A.  Yes,  sir  ;  Small  was  allowed  to  speak, 
and  time  enough  to  Mr.  Spencer  to  speak, 
after  all  the  preparations  were  made ;  some 
time  elapsed  after  the  ropes  were  placed 
round  their  necks  ;  it  was  not  done  hastily  ; 
there  was  time  enough  for  everything,  and, 
as  far  as  I  recollect,  every  request  made  by 
them  was  granted. 

BY  THE  JUDGE  ADVOCATE. 

Q.  When  Commander  Mackenzie  asked 
you  if  it  was  right  to  allow  Small  to  con- 
tinue his  speech,  could  Mr.  Spencer  have 
heard  Commander  Mackenzie  ? 

A.  I  don't  know  ;  I  think  not. 

The  examination  of  Lieut.  Gansevoort 
here  closed  ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

Acting-Master  Perry  being  called  and 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  you  on  board  the  Somers  in  her 
late  cruise  1  If  so,  in  what  capacity  ? 

A.  I  was  on  board  of  her  as  acting  mas- 
ter ;  my  age  is  21  ;  my  name  Matthew  C. 
Perry,  jr. 

Q.  What  was  the  state  of  discipline  of 
her  crew  from  the  time  of  her  leaving  New 
York  until  her  arrival  at  Madeira  ? 

A.  'Twas  good,  sir. 

Q.  What  was  the  state  of  subordination 
of  the  crew  for  two  or  three  weeks  previous 
to  the  arrest  of  Mr.  Spencer  ? 

A.  'Twas  bad. 

Q.  Describe  in  what  this  change  in  the 
subordination  of  the  crew  consisted. 


NAVAL  COURT  MARTIAL. 


61 


A.  In  not  attending  to  their  duty,  careless 
in  obeying  orders  ;  an  order  would  have  to 
be  repeated  two  or  three  times. 

Q.  Was  the  manner  of  the  crew  toward 
the  officers  disrespectful  or  otherwise,  du- 
ring the  period  last  inquired  of  ? 

A.  In  some  cases  it  was  not  respectful 
at  all  to  the  officers  ;  some  of  the  crew 
were  ;  the  smaller  portion  were. 

Q.  Did  this  insubordination  of  the  crew 
diminish  or  increase  after  the  arrest  of  Mr. 
Spencer  ?  What  were  the  signs  of  discon- 
tent arid  disaffection  of  any  of  such  as  you 
observed  ? 

A.  The  insubordination  increased  after 
the  arrest ;  orders  were  not  obeyed  unless 
repeated  two  or  three  times  ;  the  crew  col- 
lected aft  out  of  their  stations,  were  sullen 
while  they  were  attending  to  their  duty, 
talking  to  themselves  and  each  other ;  that 
is  all  that  I  can  recollect. 

Q.  After  Cromwell  and  Small  were  iron- 
ed, and  until  the  execution,  did  the  in- 
subordination of  the  crew  increase  or  di- 
minish ? 

A.  Still  increased. 

Q.  Was  there  anything  in  the  manner 
and  conduct  of  the  crew  to  create  the  opin- 
ion that  a  rescue  of  the  prisoners  would  be 
attempted,  and  if  so,  state  all  the  circum- 
stances ? 

A.  Yes,  sir  ;  there  was  a  general  inclina- 
tion to  speak  to  the  prisoners  ;  those  per- 
sons whose  characters  were  suspicious,  col- 
lecting about  the  mainmast  in  groups  ;  also 
their  collecting  in  quiet  places  by  them- 
selves, and  talking  to  each  other  in  a  low 
tone  and  to  themselves ;  when  an  officer 
came  near  them  they  would  stop  the  con- 
versation altogether  or  apparently  turn  it 
off,  and  speak  of  some  other  subject  in  a 
louder  tone,  to  be  heard  ;  I  also  saw  Wilson 
rubbing  his  battle-axe  with  a  file,  between 
two  of  the  guns  on  the  larboard  side  of  the 
deck ;  on  examining  it,  I  found  it  very  sharp  ; 
and  from  the  general  manner  and  looks, 
which  are  indescribable,  and  also  from  the 
evidence  given  before  the  council,  and  from 
what  I  heard  and  observed  about  the  decks 
from  some  of  the  crew. 

Q.  Did  you  observe  any  attempts  to  com- 
municate with  the  prisoners  ? 

A.  I  observed  an  inclination  in  Wilson 
and  McKee  to  come  near  the  prisoners,  and 
I  thought  with  the  intention  of  speaking  to 
them  on  some  pretext  or  other. 


Q.  If  an  attempt  had  been  made  during  a 
dark  night,  or  during  a  squall,  or  in  the  con- 
fusion of  a  boy  falling  overboard,  to  capture 
the  vessel  from  the  officers,  would  it  or 
would  it  not,  in  your  judgment,  founded  on 
the  condition  of  the  vessel,  have  been  suc- 
cessful ? 

A.  It  would  have  been  successful. 

Q.  From  the  time  of  the  arrest  of  Mr. 
Spencer  until  the  execution,  what  were  the 
duties  performed  (by  the  officers)  ?  Were 
they  or  were  they  not  unusually  exhaust- 
ing ? 

A.  They  were  unusually  exhausting  ;  the 
evening  after  Mr.  Spencer's  arrest,  the  offi- 
cers were  put  in  three  watches  instead  of 
four ;  the  officer  of  the  decks  had  to  wear 
two  pistols,  and  the  officer  of  the  forecastle 
one,  and  to  take  charge  of  a  cutlass — they 
did  not  wear  it — and  while  it  was  their 
watch  below,  to  keep  continually  moving 
about  the  vessel.  After  Cromwell's  and 
Small's  arrest,  the  officers  had  to  wear  two 
pistols,  a  cutlass,  and  cartridge-box  contin- 
ually during  the  night ;  before  the  execution 
they  were  in  two  watches,  watch  and  watch, 
and  generally  throughout  the  day  continually 
on  deck,  either  the  birth  or  spar-deck. 

Q.  How  long,  in  your  opinion,  could  the 
officers  have  continued  to  perform  the  duties 
imposed  upon  them  ? 

A .  I  don't  think  they  could  have  held  out 
a  day  and  a  half  longer. 

Q.  Were  Mr.  Spencer,  Cromwell,  and 
Small  the  only  persons  among  the  crew  ca- 
pable of  navigating  the  vessel  ? 

A.  Among  the  whole  crew,  to  the  best  of 
my  knowledge,  I  think  they  were. 

The  examination  of  Acting-Master  Perry 
was  here  suspended.  His  evidence  was 
read  to  him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Friday),  Feb.  17,  at  10  o'clock,  A,  M. 


NAVY  YARD, 
Brooklyn,  Feb.  17,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read, 
"       Bolton, 
"       Turner, 
"       Sloat, 
"       Smith, 
"       Storer, 


Page, 
"        Gwinn, 
"        Wyman, 
Com'dr  Ogden, 
"        Shubrick, 
Members  ; 


62 


PROCEEDINGS  OF  THE 


W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Acting-Master  Perry  recalled. 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Was  or  was  not  the  boom-tackle  fall 
carried  away  in  the  night  of  29th  Novem- 
ber, in  your  watch  ?  If  so,  state  fully  what 
passed  on  that  occasion. 

A.  The  boom-tackle  was  carried  away 
about  the  29th,  in  my  watch  ;  the  vessel 
was  rolling  very  heavy  at  the  time ;  the 
boom  kept  sweeping  across  the  deck ;  I 
took  in  the  slack  of  the  weather-sheet  my- 
self, v/ithout  thinking  of  the  prisoners  at  the 
time,  and  gave  the  orders,  "  Some  of  you 
lay  aft ;"  immediately  a  great  number  rushed 
aft,  and  I  then  gave  the  order  to  the  boy  at 
the  wheel  to  hold  on  to  the  weather-sheet, 
and  called  two  or  three  out  of  the  crowd,  of 
the  most  trusty  people,  and  ordered  the  re- 
mainder to  go  forward  ;  they  did  not  obey 
the  order  until  I  repeated  it  two  or  three 
times  and  walked  forward  to  them  ;  the 
commander  came  on  deck  at  the  same  time  ; 
they  then  went  forward  ;  that  is  all. 

Q.  When  you  went  near  the  men  assem- 
bled in  the  groups  you  have  described,  did 
you  ever  hear  what  they  were  saying  ? 

A.  No,  sir;  they  would  apparently  change 
their  conversation  ;  I  did  not  hear  what  they 
had  been  talking  to  themselves  ;  they  were 
speaking  low. 

Q.  Did  they  change  their  tone  or  manner 
when  you  approached  such  groups  ?  State 
what  occurred  on  such  occasions  ordinarily. 

A.  They  did  ;  I  observed  that  they  were 
speaking  in  a  low  tone  together,  and  would 
apparently  change  the  conversation,  and 
speak  in  a  louder  tone,  or  else  drop  their 
conversation  altogether ;  sometimes  sepa- 
rate. 

Q.  Did  the  suspected  portion  of  the  crew 
ever  collect  in  sitting  groups,  between  the 
guns,  or  on  the  forecastle  ? 

A.  Yes,  sir. 

Q.  What  was  the  manner  of  the  prisoners 
during  their  confinement  ?  State  generally 
what  you  observed  with  regard  to  it? 

A.  It  appeared  to  be  perfectly  easy  ;  that 
they  feared  nothing  ;  it  appeared  as  if  they 
expected  a  rescue  ;  Mr.  Spencer  was  gene- 
rally trying  to  look  forward  among  the  crew, 


against  positive  orders,  and  all  showed  a 
confidence,  apparently  as  if  they  thought 
there  would  be  a  rescue. 

Q.  When  the  boom-tackle  parted,  and  you 
ordered  "  some  of  you  lay  aft,"  and  18  or 
20,  as  you  state,  came  aft,  was  it  easy  at 
that  time  to  get  even  a  few  hands  aft  with- 
out frequent  repetition  of  orders. 

A.  No,  sir,  it  was  not ;  that  made  the 
crowd  the  more  suspicious  ;  we  had  to  re- 
peat the  orders  two  or  three  times,  as  I  said 
yesterday. 

Q.  With  the  course  and  night-order  book 
before  you,  state  what  were  the  orders  to 
the  officers  of  the  deck,  in  case  of  the  cry 
of  a  man  overboard. 

A.  Upon  the  cry  of  a  man  overboard,  the 
first  cry  of  the  officer  of  the  deck  will  be, 
"  down  helm — let  go  the  life-buoy,  and  clear 
away  the  boat — ready  about,"  manoeuvring 
as  in  stays,  only  at  the  word  "  mainsail 
haul,"  leaving  the  after  yards  square,  haul 
the  head  yards,  and  haul  up  the  courses  as 
quickly  as  possible. 

Q.  What  would  have  been  the  effect  of 
the  obedience  of  that  order,  when  the  main- 
top-gallantmast  was  carried  away,  had 
Gageiy  been  knocked  overboard,  in  the 
condition  of  the  Somers  ? 

A.  The  vessel  would  have  hove  to,  with 
her  maintop-sail  to  the  mast,  but  on  the  other 
tack. 

Q.  Would  it  have  produced  confusion  in 
the  vessel,  and  withdrawn  the  officers  and 
most  zealous  of  the  crew  from  watching 
over  the  prisoners  and  disaffected,  to  the 
care  of  the  vessel  ? 

A.  Yes,  sir,  it  would. 

Q.  Who  went  in  the  boat  when  a  boy  fell 
overboard,  on  the  passage  to  Porto  Rico  ? 

A.  Midshipman  Hays  and  myself  and 
Lieutenant  Gansevoort  were  the  officers ; 
two  seamen  ;  I  do  not  recollect  who  the 
others  were  now. 

Q.  Do  you  or  do  you  not  believe  that  the 
execution  of  Mr.  Spencer,  Cromwell,  and 
Small,  was  indispensable  to  the  preservation 
of  the  vessel  ? 

A.  I  do,  sir. 

Q.  Do  you  believe  that  she  could  have 
reached  any  port,  in  the  hands  of  the  offi- 
cers, without  such  execution  ? 

A.  No,  sir,  I  do  not. 

Q.  Did  any  change  take  place  in  the  in- 
subordination of  the  crew  after  the  execu- 
tion? How  did  it  show  itself? 


NAVAL  COURT  MARTIAL. 


63 


A.  There  did ;  it  brought  the  discipline 
back  ;  they  were  cheerful,  apparently  as  if 
their  minds  were  relieved  from  fear  of  ex- 
posure of  being  in  the  plot. 

Q.  What  change  took  place  in  the  per- 
formance of  ship's  duty  ? 

A.  They  obeyed  the  orders  with  alac- 
rity ;  everything  was  carried  on  with  cheer- 
fulness and  alacrity. 

Q.  Was  or  was  not  Mr.  Spencer  in  the 
habit  of  associating  familiarly  with  the 
crew  ?  and  if  so,  with  which  of  the  crew 
was  he  most  intimate  ? 

A.  He  was  with  Green,  Cromwell,  and 
Small ;  those  are  the  only  three  that  came 
under  my  own  observation. 

Q.  Was  Mr.  Spencer  more  intimate  with 
the  crew  or  with  his  messmates  ? 

A.  With  the  crew. 

Q.  What  was  the  deportment  of  Crom- 
well in  the  performance  of  his  duty  toward 
the  crew  throughout  the  cruise  ? 

A.  'Twas  rough  and  surly  throughout 
the  cruise,  to  the  best  of  my  observation  ; 
I  did  not  notice  the  latter  part. 

CROSS-EXAMINED. 

Q.  Did  you  keep  the  log-book  of  the 
Somers  ?  state  the  date  when  it  first  came 
under  your  charge. 

A.  I  did  have  charge  of  the  log-book,  and 
took  charge  of  it  on  the  12th  of  May, 
1842. 

Q.  Were  the  entries  that  now  appear  on 
the  log-book,  under  the  date  from  the  25th 
of  November  to  the  6th  of  December,  those 
which  were  originally  made  ? 

A.  Yes,  sir. 

Q.  Look  at  the  log-book,  and  tell  me  the 
date  of  the  departure  of  the  Somers  from 
New  York,  and  the  dates  of  her  arrival  at 
and  departure  from  every  port  or  anchorage 
she  made  in  her  cruise. 

A.  We  left  New  York  on  the  13th  Sept., 
1842,  civil  time  ;  arrived  at  Funchal,  Oct.  5, 
1842  ;  arrived  at  Santa  Cruz,  Oct.  8, 1842  ; 
arrived  at  Porto  Praya,  Oct.  21,  1842  ;  ar- 
rived at  Cape  Mesurado,  Nov.  10,  1842; 
arrived  at  St.  Thomas,  Dec.  5,  1842  ;  ar- 
rived at  New  York,  Dec.  15,  1842. 

Q.  What  did  you  overhear  of  the  conver- 
sation, at  the  time  of  the  arrest  of  Mr.  Spen- 
cer, between  the  commander  and  Mr.  Spen- 
cer, and  where  were  you  placed  at  the  time  ? 

A.  I  was  at  the  wheel  steering  the  ves- 
sel, and  I  heard  Mr.  Spencer  say,  "  I  don't 


remember  what  1  said,  in  fact  I  can't  tell ;" 
I  heard  nothing  from  the  commander. 

Q.  How  long  was  this  after  the  com- 
mander first  began  to  address  Mr.  Spencer  ? 

A.  I  suppose  about  fifteen  minutes. 

Q.  How  was  Mr.  Spencer  employed  on 
the  day  of  the  21st  of  Nov.,  did  he  do  the 
usual  duties  of  an  officer  of  his  station  ? 

A.  To  the  best  of  my  knowledge,  he 
did. 

Q.  Did  you  receive  orders  to  put  Mr. 
Spencer  to  death,  if  he  attempted  to  escape, 
or  an  attempt  to  rescue  was  made,  and  if  so, 
did  you  tell  Mr.  Spencer  these  orders  ? 

A.  I  did  receive  those  orders  ;  I  did  not 
tell  Mr.  Spencer. 

Q.  Did  you  inspect  Mr.  Spencer's  irons 
during  the  night  of  the  26th  of  Nov.,  and 
had  you  any  conversation  with  him  that 
night,  or  did  he  make  any  observations  to 
you? 

A.  I  did  inspect  his  irons  ;  I  don't  recol- 
lect his  making  any  observations  to  me,  or 
I  to  him. 

Q.  Had  you  ever  heard,  before  the  oc- 
currence to  the  mast,  that  it  was  thought 
weak  ? 

A.  No,  sir. 

Q.  Did  you  ever  hear  either  Cromwell, 
Small,  or  Wilson,  asked  why  he  had  gone 
aloft  at  the  time  of  the  occurrence  to  the 
mast  1 

A.  No,  sir,  I  did  not. 

Q.  Did  you  ever  hear  either  of  those 
charged  with  having  gone  to  the  tops,  on 
the  27th  of  Nov.,  to  hold  a  plotting  conver- 
sation ? 

A.  No,  sir. 

Q.  Did  you  observe  Cromwell,  Small, 
and  Wilson,  on  the  maintopmast  cross-trees, 
and  what  were  they  doing,  after  the  acci- 
dent, to  the  mast  ? 

A.  I  observed  Cromwell  and  Wilson 
there  ;  Wilson  was  on  the  maintopsail  yard 
doing  nothing  ;  Cromwell  on  the  cap  at 
work. 

Q.  Did  you  think  at  the  time,  that  the 
mast  was  carried  away  by  design,  to  afford 
an  outbreak  to  the  mutiny,  or  to  rescue  Mr. 
Spencer  ? 

A.  I  did,  sir. 

Q.  Were  you  on  deck  at  the  time  of  the 
occurrence  to  the  mast  ? 

A.  I  was  not. 

Q.  How  soon  after  did  you  come  up,  and 
how  long  did  you  stay  up  on  deck  ? 


64 


PROCEEDINGS  OF  THE 


A.  I  was  on  deck  immediately,  and  went 
below  after  half  an  hour  and  stayed  a  few 
minutes,  and  remained  on  deck,  with  the 
exception  of  a  few  minutes,  until  sail  was 
set  on  the  new  mast. 

Q.  Why  did  you  go  below  ? 

A.  The  first  time,  I  don't  remember  why  ; 
the  second  time,  for  niy  meal. 

Q.  Did  you  not  swear  before  the  court 
of  inquiry,  that  you  went  below  because  you 
found  nothing  to  do  ? 

A.  I  might  have  done  so ;  and  by  re- 
freshing my  memory,  by  referring  to  the 
records  of  the  court  of  inquiry,  I  do  recol- 
lect having  sworn  so. 

Q.  If  you  supposed  the  occurrence  to  the 
mast  was  meant  to  afford  an  outbreak  to  the 
mutiny,  would  it  not  have  been  your  duty 
to  remain  on  deck  ? 

A.  I  did  remain  on  deck  as  long  as  there 
was  any  confusion,  or  any  likelihood  of 
there  being  any. 

Q.  When  you  went  below,  did  you  then 
suppose  all  apprehension  of  a  rescue,  or 
outbreak  of  the  mutiny,  was  over  ? 

A.  I  did,  sir,  until  dark ;  that  there  was 
no  more  likelihood  of  a  rescue,  than  was 
likely  from  the  time  of  the  arrest  of  Mr. 
Spencer. 

Q.  When  you  went  down,  did  Mr.  Ganse- 
voort  come  down  to  you,  and  what  his  con- 
versation with  you,  if  any  ? 

A.  He  came  down  and  gave  me  a  pistol 
and  cutlass,  and  told  me  to  go  on  deck ;  to 
station  myself  in  the  starboard  gangway; 
that  he  was  going  to  confine  Cromwell ; 
that  was  the  amount  of  the  order. 

Q.  Did  you  not  arm  yourself  while  on 
deck,  or  had  you  no  arms  before  the  con- 
versation with  Mr.  Gansevoort  ? 

A  I  had  no  arms  before  the  conversa- 
tion. 

Q.  If  you  feared  a  rescue  while  first  on 
deck,  why  did  you  not  arm  yourself  ?  were 
there  not  battle-axes  on  the  ship's  bul- 
warks ? 

A.  Yes,  there  were  ;  I  did  not  think  of 
it  at  the  time ;  it  was  immediately  on  my 
arrival  on  deck,  after  hearing  how  the  mast 
was  carried  away,  that  the  idea  of  a  rescue 
first  struck  me. 

Q.  Did  it  never  occur  to  you  to  arm 
yourself,  during  the  half  hour  you  were  on 
deck? 

A.  No,  sir ;  I  did  not  think,  after  I  had 
been  on  deck  a  short  time,  and  saw  the 


crew  going  to  their  duty,  that  a  rescue  would 
be  attempted  before  dark ;  and  that  is  one 
reason  why  I  went  below. 

Q.  Did  you  hear  Anderson  say  why  he 
came  down  from  aloft  for  a  tail  block  ? 

A.  No,  sir;  I  did  not  hear  him  say  any- 
thing about  it. 

Q.  Would  it  be  an  advantageous  position 
to  effect  it,  for  men  meaning  a  rescue,  to  go 
aloft  ? 

A.  It  would  depend  upon  circumstances. 

Q.  Upon  what  circumstances  would  it 
depend  ? 

A.  If  they  went  aloft  to  plan,  it  was  an 
advantageous  place  ;  if  they  went  aloft  to 
plan  or  create  confusion,  it  was  a  good  place, 
as  they  might  cut  away  the  gaffs,  and  throw 
studding  sails  out  of  the  tops,  and  the  rig- 
ging that  was  in  the  tops — it  would  create 
confusion,  and  assist  a  rescue  very  much. 

Q.  Was  there  any  of  this  damage  done 
or  attempted,  that  you  saw,  on  the  occur- 
rence to  the  mast  on  the  27th  of  Novem- 
ber ? 

A.  No,  sir. 

Q.  Did  you  hear  the  conversation  be- 
tween the  commander  and  Cromwell,  when 
he  was  arrested  ? 

A.  No,  sir  ;  I  did  not. 

Q.  Did  you  observe  or  hear  the  rush,  at 
the  time  of  swaying  the  mast,  on  the  27th 
of  November  ? 

A.  I  did  see  it,  and  heard  it,  both. 

Q.  Did  you  hear  Mr.  Gansevoort  cry  out 
to  the  men,  that  he  would  shoot  the  first  one 
who  put  his  foot  on  the  quarter-deck  ? 

A.  I  heard  him  call  out  his  words  ;  I  did 
not  understand  ;  I  also  saw  him  with  a  pis- 
tol in  his  hand. 

Q.  Did  you  hear  Mr.  Rogers  cry  out  in 
reply  to  Mr.  Gansevoort,  and  what  did  he 
say? 

A.  I  heard  him  cry  out,  "  It's  me,  sir,  I 
am  starting  the  men  aft,"  or  words  to  that 
effect. 

Q.  Did  Mr.  Gansevoort  admit  to  you  af- 
terward, that  he  had  been  under  a  wrong 
impression,  as  to  the  cause  of  the  rush,  and 
had  been  near  shooting  one  of  the  men  im- 
properly ?  state  his  whole  account  of  that 
occurrence  on  that  evening. 

A.  I  can't  say  I  have  ever  heard  him  ad- 
mit that  he  was  under  an  erroneous  opinion, 
but  I  have  heard  him  admit  that  he  came 
near  shooting  a  man ;  that,  had  it  not  been 
for  Mr.  Rogers  speaking  at  the  time,  he 


NAVAL  COURT  MARTIAL. 


65 


should  have  shot  the  tallest  man  in  the 
crowd,  which,  no  doubt,  was  Wilson. 

Q.  Did  he  express  himself  gratified  that 
he  had  not  shot  ? 

A.  Yes,  sir. 

Q.  Did  he  not  say  he  might  have  shot 
an  innocent  man  ? 

A.  I  don't  remember,  he  might  have  said 
so. 

Q.  When  did  you  first  suppose  the  exe- 
cution of  Mr.  Spencer,  Cromwell  and  Small, 
necessary  for  the  safety  of  the  vessel  and 
crew? 

A.  One  day  before  the  council  of  officers 
was  held. 

Q.  When  did  Mr.  Gansevoort  first  con- 
sult you,  as  to  the  propriety  of  executing 
Mr.  Spencer,  Cromwell,  and  Small,  and 
what  did  you  tell  him  ? 

A.  He  asked  me,  during  the  day  before 
the  council  of  officers  was  held,  a  question 
to  this  effect — "  If  I  thought  it  safe  to  con- 
fine any  more  prisoners,  in  the  present  con- 
dition of  the  vessel,  and  if  so,  what  was  to 
be  done  with  the  previous  three  ?"  I  told 
him  that  I  did  not  think  we  could  take 
charge  of  any  more  prisoners  with  safety  to 
the  vessel,  and,  if  necessity  required  more 
to  be  taken,  the  first  three  ought  to  be  dis- 
posed of,  that  is,  put  to  death. 

Q.  When  was  the  council  of  officers 
held? 

A.  The  day  before  the  execution,  on  the 
30th  of  November. 

Q.  Was  not  this  conversation  with  Mr. 
Gansevoort,  the  day  after  Cromwell's  ar- 
rest? 

A.  I  think  it  was  the  day  before  the 
council  of  officers  was  held ;  I  don't  know 
whether  it  was  the  day  after  Cromwell's  ar- 
rest, or  not. 

Q.  Did  you  not  swear  before  the  court 
of  inquiry  that  this  conversation  with  Mr. 
Gansevoort  was  on  the  28th  of  November  ? 

A.  I  may  have  done  so  ;  I  don't  remem- 
ber;  if  I  did  so,  it  was  correct. 

Q.  Was  not  Cromwell  arrested  on  the 
evening  of  the  27th  of  November  ? 

A.  On  the  evening  of  the  27th,  civil  time. 

Q.  How  was  it  that,  on  the  28th  of  No- 
vember (if  you  have  stated  the  conversation 
to  have  occurred  then,  before  the  court  of 
inquiry),  that  you  told  Mr.  Gansevoort  that 
Mr.  Spencer,  Cromwell,  and  Small,  should 
be  put  to  death,  wh'en  you  now  state  that 
you  did  not  think  the  execution  necessary 
9 


until  the  day  before  the  council  of  officers 
was  held  ? 

A.  I  said  I  think  it  was  the  day  before  ; 
I  am  not  positive  ;  I  do  not  mean  to  be  pos- 
itive as  to  dates,  except  when  I  refer  to  the 
log-book. 

Q.  Had  you  not  the  log-book,  while  tes- 
tifying before  the  court  of  inquiry  ? 

A.  I  had,  sir. 

Q.  What  time  of  the  day  was  this  con- 
versation with  Mr.  Gansevoort  ? 

A.  I  think  during  the  afternoon. 

Q.  When  was  M'Kinley,  M'Kee,  Wil- 
son, and  Green,  arrested,  and  for  what? 

A.  They  were  arrested  on  the  morning 
of  the  30th,  civil  time,  after  nine  and  before 
twelve  o'clock. 

Q.  What  time  of  the  day  on  the  30th  did 
the  officers  receive  Commander  Mackenzie's 
letter,  and  what  time  did  the  council  of  offi- 
cers commence  session  ? 

A.  On  the  forenoon  of  the  30th  ;  at  what 
hour  I  don't  remember ;  and  were  in  session 
till  about  sundown. 

Q.  About  how  long  after  the  quarters  on 
the  morning  of  the  30th  was  the  letter  re- 
ceived ?  try  and  remember. 

A.  I  think  it  was  about  two  hours — eleven 
o'clock,  to  the  best  of  my  recollection. 

Q.  When  did  you  first  hear,  and  from 
whom,  that  such  a  letter  would  be  addressed 
to  the  officers  ? 

A.  The  first  I  heard  of  it  was  when  the 
council  of  officers  were  assembled  in  the 
ward-room,  the  letter  was  given  by  Lieu- 
tenant Gansevoort. 

Q.  Had  you  not,  in  your  consultation 
with  the  officers  before  the  30th,  heard  it 
proposed  or  discussed  as  to  the  holding  a 
council  of  officers  for  the  purpose  of  taking 
testimony  ? 

A.  Not  to  my  recollection — no,  sir. 

Q.  When  did  you  first  hear  that  the 
mutiny  was  to  break  out  before  the  arrival 
of  the  Somers  at  St.  Thomas,  and  from 
whom  ? 

A.  From  Mr.  Wales,  I  think  it  was, 
during  the  evening  of  the  arrest  of  Mr. 
Spencer. 

Q.  Did  Mr.  Wales  tell  you  that  he  sus- 
pected it  would  break  out,  or  that  Mr.  Spen- 
cer had  told  him  so  ? 

A.  To  the  best  of  my  knowledge,  he  did 
say  that  it  would  break  out ;  I  won't  swear 
to  it  positively  ;  I  understood  it  to  come  to 
Mr.  Wales  through  Mr.  Spencer. 


66 


PROCEEDINGS  OF  THE 


Q.  Who  was  present  when  Wales  was 
holding  this  conversation  with  you  ? 

A.  I  don't  remember. 

Q.  Where  was  the  conversation  held,  and 
how  long  after  Mr.  Spencer's  arrest  1 

A.  Held  in  the  ward-room — one  place 
that  I  remember,  and  a  short  time  after  Mr. 
Spencer's  arrest. 

Q.  Can  you  not  recollect  whether  or  not 
you  were  alone  with  Mr.  Wales  ? 

A.  I  think  he  and  I  were  the  only  ones 
in  the  ward-room  at  the  time. 

Q.  Did  you  hear  Wales  testify  before  the 
council  ? 

A.  I  did,  sir. 

Q.  Did  you  or  not  hear  Wales  testify  that 
Mr.  Spencer  had  told  him  that  the  mutiny 
was  to  break  out  before  the  arrival  of  the 
Somers  at  St.  Thomas  ? 

A.  By  a  reference  to  the  record  of  the 
council  of  officers  I  see  no  mention  made 
of  such  fact,  therefore  I  conclude  it  was 
not  made. 

Q.  Was  it  discussed  in  the  council  of 
officers  as  to  whether  the  vessel  could  be 
carried  into  St.  Thomas  or  any  nearer  port  ? 
was  the  chart  examined,  and  the  distance 
of  the  vessel  from  neighboring  islands  cal- 
culated ? 

A.  It  was  discussed  as  to  whether  she 
could  be  taken  into  St.  Thomas,  and  I,  in 
answer,  said  that  I  would  rather  go  over- 
board than  go  into  St.  Thomas  for  protec- 
tion— that  I  would  never  agree  to  a  thing 
of  the  kind,  and  I  also  said  it  would  be  an 
impossibility  to  take  the  vessel  into  any 
port ;  I  don't  recollect  whether  the  chart 
was  examined  or  not  while  I  was  there  ; 
the  distance  to  St.  Thomas  I  told  the  coun- 
cil myself. 

Q.  Why  did  you  say  you  would  sooner 
go  overboard  than  seek  protection  at  St. 
Thomas,  and  that  you  would  not  agree  to 
such  a  thing  ? 

A.  Because  I  thought  it  would  be  a  dis- 
grace to  the  United  States,  the  navy,  and 
particularly  the  officers  of  the  brig ;  my  rea- 
sons were  that  if  an  American  man-of-war 
could  not  protect  herself,  no  use  in  having 
any. 

Q.  Did  you  tell  the  council  the  distance 
to  any  other  island  than  St.  Thomas  ? 

A.  No,  sir,  to  my  knowledge  I  did  not. 

Q.  How  was  the  vote  and  opinions  asked 
of  the  members  of  the  council  ?  who  gave 
his  first  vote  ?  who  next  ?  and  so  on. 


A.  I  was  absent  when  the  final  opinion 
was  given  in  ;  I  had  given  in  mine  the  night 
before  ;  and  as  some  officer  had  to  be  on 
deck,  I  took  charge  of  the  deck  on  the 
morning  of  the  1st  of  December,  when  the 
opinion  was  given  in. 

Q.  Did  the  officers  severally  give  in  the 
opinions  verbally,  or  in  writing  ? 

A.  I  gave  in  my  opinion  verbally ;  I  was 
not  there  when  the  general  opinion  was 
taken  ;  I  signed  my  name  to  a  letter  to  the 
commander,  which  made  it  a  written  opinion. 

Q.  Did  the  officers  of  the  council  pre- 
pare more  than  one  letter  of  reply  to  the 
said  commander?  and,  if  so,  how  did  they 
respectively  differ,  if  you  have  any  recol- 
lection ? 

A.  I  saw  but  one  of  these  letters,  and 
that  is  the  one  the  commander  received. 

Q.  Did  you  discuss,  on  the  28th  or  29th; 
with  any  of  the  other  officers  besides  Mr. 
Gansevoort  the  propriety  of  putting  Mr. 
Spencer,  Cromwell,  and  Small,  to  death  ? 
and,  if  so,  whom  ? 

A.  With  Mr.  Rogers,  the  28th  and  29th  j 
I  notice  the  time  stated  in  the  question. 

Q.  At  the  time  of  the  arrest  of  Small 
and  Cromwell,  did  you  hear  the  conversa- 
tion between  the  commander,  Cromwell, 
and  Small  ? 

A.  I  did  not. 

Q.  Was  Mr.  Spencer  asked  by  you,  or 
any  one  in  your  hearing,  when  he  had  first 
broached  his  scheme  to  Small  ? 

A.  No,  sir. 

Q.  Was  Small  asked  by  you,  or  by  any 
one  in  your  hearing,  when  Mr.  Spencer  had 
first  broached  his  scheme  to  him  ? 

A.  No,  sir. 

Q.  Did  you  ask  Mr.  Spencer,  or  did  any 
one  in  your  hearing  ask  him,  if  the  names 
on  his  list  contained  those  who  were,  or 
those  whom  he  only  hoped  to  be,  his  ac- 
complices ? 

A.  No,  sir. 

Q.  Charge  you  memory  particularly,  and 
state  every  inquiry  you  heard  made  of  Mr. 
Spencer  in  respect  to  his  two  papers  and 
plot,  and  his  replies  ;  was  he  asked,  or  did 
he  say,  when  he  first  made  out  that  paper  ? 

A.  I  heard  no  questions  put  to  him. 

Q.  Did  Mr.  Spencer  say  that  he  had 
been  drinking  liquor  on  the  evening  of  the 
25th  of  November  with^Small,  and  thus  ac- 
count for  his  conversation  with  Small  ? 

A.  I  heard  Mr.  Spencer  say  nothing  ex- 


NAVAL  COURT  MARTIAL. 


67 


cept  what  I  have  already  stated,  unless  ask- 
ing me  for  tobacco  once,  or  for  something  at 
a  meal ;  for  instance,  water — I  have  offered 
him  water,  or  things  of  that  kind. 

BY  COMMANDER    OGDEN. 

Q.  Did  you  see  Mr.  Spencer  on  the 
evening  of  the  25th  of  November,  between 
the  hours  of  six  and  eight,  or  at  any  hour  ? 
and,  if  so,  was  he  under  the  influence  of 
liquor  ? 

A.  I  don't  remember  of  seeing  him. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  hear  Mr.  Spencer  desire 
pen  and  paper  to  take  an  account  of  occur- 
rences ? 

A.  No,  sir,  not  to  my  recollection. 

Q.  Did  Mr.  Gansevoort  tell  you  before 
the  execution  that  Mr.  Spencer  had  pro- 
posed to  Bhave  a  conversation  with  him 
when  his  (Mr.  Spencer's)  mind  was  in  a 
suitable  state  ?  state  all  he  told  you. 

A.  I  think  he  spoke  about  it  before  the 
council  of  officers  ;  he  stated  that  he  had 
gone  to  Mr.  Spencer,  and  that  he  had  asked 
him  if  he  would  state  what  he  knew  about 
this  affair ;  he  (Spencer)  said  he  would 
send  for  him  again,  and  would  tell  him 
when  his  mind  was  prepared  ;  Mr.  Ganse- 
voort went  to  him  again ;  referring  to  the 
minutes  brings  back  to  my  mind  that  Mr. 
Gansevoort  said  that  Mr.  Spencer  had  told 
him  he  had  had  a  plot  of  that  kind  on  board 
of  the  John  Adams  and  Potomac  previous- 
ly— that  it  was  a  mania  with  him. 

Q.  Did  Mr.  Gansevoort  tell  you  any  in- 
quiries he  put  to  Mr.  Spencer  ? 

A.  I  do  not  recollect  now. 

Q.  Had  you  seen  any  act  of  insubordina- 
tion on  the  part  of  Cromwell,  Small,  and 
M-Kinley,  Wilson,  M'Kee,  or  Green,  pre- 
vious to  their  arrest  ? 

A.  I  had  in  Green  ;  in  the  case  of  M'Kin- 
ley,  I  have  seen  him  punished  once  for 
drawing  a  knife  on  a  man  ;  Small's  care- 
lessness of  duty  and  disobedience  of  orders, 
causing  him  to  be  broken  from  a  quarter- 
master and  disrated  to  a  seaman  ;  I  heard 
Cromwell  damn  the  lacings  on  the  jib  and 
the  person  who  invented  them  ;  he  was  re- 
proved by  Lieut.  Gansevoort:  these  were 
the  men  whom  I  had  noticed  as  particularly 
relaxing  in  their  duties  and  obeying  orders  ; 
M'Kee  I  had  not  noticed  so  much  as  the 
others  :  I  wish  to  say,  upon  reflection,  that 


we  were  not  put  in  three  watches  until  after 
the  execution ;  before  that,  the  officer  wha 
had  the  sleep  in  kept  the  first  watch  on  the 
berth-deck. 

The  examination  of  Acting-Master  Perry 
here  suspended,  his  evidence  was  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Saturday),  February  18,  at  10  o'clock, 
A.  M. 

NAVY  YARD, 
Brooklyn,  Feb.  18,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Smith,  "       Shubrick, 

"       Storer,  Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Acting-Master  Perry  recalled. 
I  yesterday  stated  that  it  was  the  day  be- 
fore the  council  of  officers  was  held  that  I 
concluded  it  was  necessary  to  execute  Mr. 
Spencer,  Cromwell,  and  Small ;  I  now  wish 
to  state  that  it  was  during  the  two  days 
before. 

BY  THE    JUDGE  ADVOCATE. 

Q.  Refresh  your  recollection  by  refer- 
ence to  the  minutes  of  the  court  of  inquiry, 
and  say  whether  you  did  not  state  before 
that  court  that  you  had  seen  no  act  of  in- 
subordination in  Wilson,  Green,  M'Kinley, 
and  M'Kee,  before  the  arrest  of  Mr.  Spen- 
cer ? 

A.  I  asked  you  yesterday  if  you  meant, 
by  your  question,  while  these  men  were  on 
board  ;  M'Kinley  drew  his  knife  on  Ford 
previous  to  sailing  on  the  last  cruise. 

Q.  Will  you  now  state  whether,  after  the 
sailing  of  the  Somers  on  the  1 3th  of  Sep- 
tember last,  you  saw  any  act  of  insubordi- 
nation in  Wilson,  M'Kinley,  Green,  Crom- 
well, or  M'Kee,  previous  to  the  arrest  ? 

A.  None  of  M'Kinley  under  my  own 
observation  ;  I  recollect  Wilson  striking  the 
boy  Weaver,  and  Cromwell's  damning  the 
jibstay,  before  the  officers,  as  I  stated  yes- 
terday ;  of  M'Kee  I  remember  nothing. 


68 


PROCEEDINGS  OF  THE 


Q.  Was  there  anything  peculiar  in  the 
rig  of  the  jib  of  the  Somers  ? 

A.  Yes,  sir. 

Q.  What  was  the  peculiarity  ? 

A.  Had  lacings  instead  of  hanks  ;  hanks 
are  made  of  wood,  iron,  or  of  rope. 

Q.  Did  the  jib  of  the  Somers  work  well 
or  not  in  lowering  it  1 

A.  In  the  first  part  of  the  cruise  it  did  not, 
in  the  latter  part  it  did. 

Q.  Explain  why  it  did  not  work  well  the 
first  part  of  the  cruise. 

A.  The  principal  reason  was,  because 
the  turns  of  the  lacing  were  passed  the 
wrong  way. 

Q.  When  was  it  that  Cromwell  damned 
the  jib  ? 

A.  I  think  it  was  between  Madeira  and 
Santa  Cruz. 

Q.  When  was  the  improvement  made  in 
the  working  of  the  jib  ? 

A.  It  was  after  leaving  Santa  Cruz  ;  I 
don't  know  the  exact  time. 

Q.  How  many  would  compose  the  knots 
of  people  you  have  seen  collected  on  the 
deck  after  the  arrest  of  the  prisoners  ? 

A.  Three  or  four. 

Q.  On  what  deck  would  these  knots 
be? 

A.  On  the  spar  deck. 

Q.  Can  not  the  conduct  of  the  people  on 
the  spar  deck  be  more  readily  observed  than 
in  any  other  place  of  the  vessel  allowed  the 
men  ? 

A.  Yes,  sir  ;  by  the  officers. 

Q.  Would  there  be  more  than  one  group 
at  the  time  ? 

A.  Yes,  sir. 

Q.  Have  you  ever  heard  any  mutinous 
expression  from  Mr.  Spencer  to  the  crew  1 

A.  No,  sir. 

Q.  Do  you  know  whether  the  relatives 
and  friends  of  Commander  Mackenzie  were 
cautioned  by  him  after  the  coming  aboard 
of  Mr.  Spencer  to  be  wary  of  an  intimacy 
with  him  ? 

A.  I  don't  remember  ;  I  have  a  slight 
recollection  of  something  being  said  about 
it. 

Q.  During  the  time  of  confinement  of 
Mr.  Spencer,  do  you  know  whether  it  was 
his  information  that  he  was  to  be  taken  to 
the  United  States  for  trial  ?  How  was  it  as 
to  this  as  to  Cromwell  and  Small,  and  when 
were  they  first  undeceived  ? 

A.  I  was  under  the  impression  that  he 


was  aware  that  he  was  to  be  taken  to  the 
United  States  for  trial.  It  was  the  same 
with  Cromwell  and  Small — with  the  whole 
of  them  ;  the  first  of  my  knowing  that  they 
were  undeceived  was  on  the  1st  of  Decem- 
ber. 

Q.  Do  you  know  whether  either  Mr. 
Spencer  or  Small  was  informed  of  Mr. 
Wales's  statement,  as  to  the  conversation 
on  the  booms,  beyond  the  declaration  of  the 
commander  to  Mr.  Spencer,  "  that  the  com- 
mander understood  that  Mr.  Spencer  aspired 
to  the  command  of  his  vessel  ?" 

A.  I  should  think  he  was,  for  Mr.  Spen- 
cer saw  Mr.  Wales  questioned  by  the  com- 
mander. I  heard  none  of  the  conversation 
except  one  remark. 

Q.  When  Mr.  Wales  was  questioned  by 
the  commander  in  Mr.  Spencer's  presence, 
were  not  Lieut.  Gansevoort,  Dr.  Lee  cock, 
and  Mr.  Heiskill,  and  Mr.  Rogers,  stand- 
ing by  1 

A.  Dr.  Leecock,  Mr.  Heiskill,  and  Mr. 
Rogers,  were ;  I  think  Lieut.  Gansevoort 
was  not. 

Q.  During  the  period  of  the  confinement 
of  those  who  were  executed,  were  they  in- 
formed that  it  was  agitated  to  take  their 
lives,  and  were  either  of  them  told  the  tes- 
timony against  him,  and  asked  what  he  had 
to  say  in  extenuation  or  vindication  of  him- 
self? 

A.  I  heard  no  conversation  with  them 
carried  on  at  all  until  the  1st  December. 

Q.  Do  you  know  whether  any  officer  or 
man  applied  for  permission  to  give  them 
this  notice,  and  to  proffer  any  of  the  offices 
of  fair  assistance  and  counsel  ? 

A.  No,  sir. 

Q.  In  your  consultation  with  any  of  the 
officers,  was  it  at  all  suggested  that,  if  those 
executed  were  taken  to  the  United  States, 
they  would  escape  through  the  agency  of 
friends  or  money,  or  both  ? 

A.  No,  sir. 

Q.  Do  you  not  know  that  the  knots  of 
men  spoken  of  by  you  did  collect  to  specu- 
late as  to  the  cause  of  Mr.  Spencer's  arrest 
and  that  of  the  other  prisoners  ? 

A.  I  do  not  know  that  they  did. 

BY  COMMANDER    OGDEN. 

Q.  Did  the  men  continue  to  collect  in 
knots  after  they  knew  why  the  prisoners 
were  confined  ? 

A.  They  did. 


NAVAL  COURT  MARTIAL. 


69 


BY  THE  JUDGE  ADVOCATE. 

Q.  If  an  unusual  number  of  men  were  to 
gather  on  the  deck,  be  talking  to  each  other, 
and  to  look  at  something  novel  on  the  quar- 
ter-deck, would  orders  be  heard  and  obeyed 
as  readily  and  promptly  as  if  the  crew  were 
dispersed  about  the  ship  as  customary  ? 

A.  If  the  vessel  is  in  proper  discipline, 
and  the  orders  given  loud  enough  to  be 
heard  forward,  aft  the  spar-deck,  they  cer- 
tainly would  move,  if  the  order  was  given. 

Q.  What  time  of  the  day  was  it  when 
you  saw  M'Kinley  filing  his  battle-axe  ? 

A.  To  the  best  of  my  recollection,  'twas 
during  the  afternoon. 

Q.  Was  he  on  the  spar-deck  ? 

A.  He  was. 

Q.  What  day  was  it  you  saw  Wilson 
thus  engaged  ? 

A.  It  was  about  the  time  of  the  arrest  of 
Mr.  Spencer,  Cromwell,  and  Small — what 
day  I  can't  remember ;  I  think  it  was  after 
the  arrest  of  Mr.  Spencer  ? 

Q.  Was  anybody  by  Wilson  at  this  time  ? 

A.  No,  sir ;  not  to  the  best  of  my  recol- 
lection. 

Q.  Did  you  speak  to  Wilson,  or  did  any 
one  in  your  hearing  ?  and  what  was  his  ac- 
count of  it  at  the  time  ? 

A.  I  did  not,  and  no  one  in  my  hearing. 

Q.  When  did  you  first  report  what  you 
had  seen  Wilson  about  ? 

A.  After  his  arrest. 

Q.  You  have  stated  that  Wilson  was  ar- 
rested on  the  30th.  If  you  thought  his  con- 
duct so  suspicious,  why  did  you  not  report 
it  before  ? 

A.  I  did  not  think  his  cleaning  his  bat- 
tle-axe suspicious  at  that  time — 'twas  a  usu- 
al occurrence. 

Q.  Did  you  charge  Wilson  with  seeking 
to  hold  intercourse  with  the  prisoners  1  and 
if  so,  what  was  his  answer  ? 

A.  No,  sir;  I  did  not. 

Q.  Did  you  report  that  you  saw  Wilson 
seeking  to  hold  intercourse  with  the  prison- 
ers ?  and  if  so,  when  ? 

A.  I  do  not  remember  ;  but  to  the  best  of 
my  belief,  I  did  report  him  and  others  as 
troublesome  to  keep  off  the  quarter-deck. 

Q.  Will  the  log-book  show  that  such  a 
report  was  made  ? 

A.  No,  sir. 

Q.  Do  not  the  reports  of  serious  offences 
always  appear  on  the  log-book  ? 


A.  No,  sir  ;  without  they  are  punished. 

Q.  Do  not  all  reports  for  offences  appear 
in  the  morning  report  1 

A.  If  the  person's  name  is  put  down  on 
the  morning  report ;  Wilson  was  already 
arrested  when  I  made  this  report. 

Q.  Do  I  understand  you  to  say,  that  you 
did  not  report  Wilson  as  troublesome  to 
keep  off  the  quarter-deck  until  after  his  ar- 
rest ? 

A.  To  the  best  of  my  knowledge,  I  did 
not. 

Q.  Did  you  regard  his  conduct  at  the 
time  of  its  occurrence  then  a  serious  and 
alarming  offence  ? 

A.  I  deemed  it  then  a  disobedience  of 
orders,  and  spoke  about  it  as  a  charge  against 
him,  and  he  was  arrested. 

Q.  Was  Wilson  charged  by  you,  or  any 
one  in  your  hearing,  with  the  disobedience 
of  orders  ?  and  if  so,  what  was  his  account 
of  it? 

A.  Not  charged  by  me,  or  anybody  in 
my  hearing. 

Q.  Is  it  not  usual  to  state  to  a  seaman 
his  disobedience  of  orders,  and  ask  his  ac- 
count of  it,  before  he  is  arrested  and  con- 
fined? 

A.  It  is  usual,  if  he  is  capable  of  answer- 
ing ;  it  depends  on  what  it  is. 

Q.  Charge  your  recollection,  and  say  if 
you  can  not  remember  that  you  saw  Wilson, 
with  his  axe,  between  the  guns  as  much  as 
two  days  before  the  arrest  ? 

A.  I  should  say  it  was  about  that  time 
before  his  arrest. 

Q.  Did  you  at  anytime  charge  him  about 
his  conduct  with  this  axe  ?  and  if  so,  what 
was  his  account  of  it  ?  or  did  any  one  in 
your  hearing  ? 

A.  I  never  said  anything  to  him  about  it, 
nor,  before  we  arrived  at  Brooklyn,  was  he 
charged  with  it,  that  I  heard. 

Q.  Have  you  ever  known  any  officer  to 
have  had  India  ink  tattooed  into  his  skin  by 
the  seamen  except  Mr.  Spencer  ? 

A.  Yes,  sir. 

Q.  Did  Green  tattoo  the  skin  of  any  oth- 
er officer  aboard  the  Somers  except  Mr. 
Spencer  ? 

A.  Not  to  my  knowledge. 

Q.  Have  you  not  been  told  by  an  officer 
(not  Mr.  Spencer)  of  the  Somers,  that  Green 
did  tattoo  his  skin  ? 

A.  No,  sir ;  not  to  the  best  of  my  recol- 
lection now. 


70 


PROCEEDINGS  OF  THE 


Q.  Is  it  an  unusual  thing  for  young  offi- 
cers to  inquire  the  history  and  adventures 
of  the  experienced  seamen,  and  to  talk  with 
them  on  such  topics  in  their  watches. 

A.  I  have  known  it  to  be  done  by  the 
young  officers  in  such  tone  that  others 
might  hear  them. 

Q.  Did  Mr.  Wales  tell  you  he  had  never 
had  any  mutinous  conversation  with  Mr. 
Spencer  before  the  conversation  on  the 
booms  ? 

A.  I  don't  remember  his  having  told  me 
that  he  had,  or  had  not. 

Q.  When  you  saw  the  memorandum  in 
Mr.  Spencer's  paper,  as  to  those  marked 
doubtful  with  a  X ,  that  they  would  prob- 
ably join  before  the  project  was  carried 
into  execution,  did  you  suppose  those  so 
marked  had  joined  on  the  25th  of  Novem- 
ber? 

A.  I  supposed  at  the  time  that  they  prom- 
ised to  join — you  may  except  Howard. 

Q.  If  Howard's  name  is  down  and  mark- 
ed with  a  X ,  why  did  you  not  suppose  he 
had  promised  to  join  as  the  others  ? 

A.  From  the  difference  in  their  general 
disposition  and  character. 

Q.  If  you  judged  from  the  particular 
character  of  Howard  that  he  had  not  prom- 
ised, do  you  mean  that  you  did  not  consider 
Howard's  name  there  by  his  authority  ? 

A.  I  don't  think  his  name  was  there  by 
his  authority. 

Q.  If  you  supposed  Howard's  name  was 
not  there  by  his  authority,  did  you  suppose 
any  of  the  others  marked  with  a  X  were 
down  by  their  authority  ? 

A.  No,  sir ;  not  down  on  list  No.  1  by 
their  authority. 

Q.  Look  at  the  paper  No.  1  arid  its 
translations,  which  you  saw  before  the  exe- 
cution ;  are  not  Wilson's,  M'Kee's,  Gallia's, 
and  Howard's  names  those  marked  with 
•*  X? 

(The  papers  shown  him.) 

.A.  They  are. 

Q.  Is  there  anything  on  the  papers  to 
show  that  Wilson,  M'Kee,  and  Gallia,  had 
promised  to  join  any  more  than  Howard  ? 

A.  Yes,  sir  ;  from  their  being  down  on 
the  station-bill  of  Mr.  Spencer,  except 
Gallia. 

Q.  There  then  was  nothing  on  the  sta- 
tion-bill to  make  you  infer  that  Gallia  had 
promised  to  join  ? 

A.  No,  sir. 


Q.  How  many,  and  whose  names  are 
down  under  the  head  of  certain  ? 

A.  Spencer,  Andrews,  M'Kinley,  and 
Wales. 

Q.  Is  Wales's  name  on  the  station-bill? 

A.  No,  sir. 

Q.  What  did  you  suppose  the  station-bill 
was  made  out  for  ? 

A.  I  suppose  it  was  made  out  so  that  the 
persons  would  know  their  stations  by  his 
referring  to  it  and  letting  them. 

Q.  Are  not  Small's  and  Spencer's  names 
on  the  station-bill  ? 

A.  Yes,  sir. 

Q.  If  Wales  was  marked  among  the  cer- 
tain, what  did  you  infer  from  not  seeing  him 
assigned  any  station  ? 

A.  I  inferred  that  the  station-bill  was 
made  out  before  Mr,  Spencer  made  known 
the  plot  to  him. 

Q.  Was  it  not  your  information  before 
the  execution  that  Mr.  Spencer  had  not 
spoken  to  Mr.  Wales  on  this  mutinous 
scheme  before  the  25th,  in  the  evening  ? 

A.  Yes,  sir. 

Q .  Knowing  this  fact,  and  seeing  Wales's 
name  on  the  list  of  certain,  have  you  not 
reason  to  doubt  whether  Mr.  Spencer  had 
spoke  to  any  on  that  list,  except  those  mark- 
ed certain,  before  the  25th  ? 

A.  No,  sir. 

Q.  What  did  you  understand  the  word 
"  certain"  to  mean  ? 

A.  That  they  had  certainly  joined  the 
plot. 

Q.  What  did  you  understand  the  word 
"  doubtful"  to  mean  ? 

A.  That  he  had  spoken  to  them,  but  that 
they  had  given  no  decided  answer — had 
promised  him  in  a  measure. 

Q.  Whose  names  appear  on  the  list  of 
"  doubtful"  not  marked  with  the  X  ? 

A.  Warner,  Green,  Gedney,  Van  Veltzor, 
Sullivan,  and  Godfrey. 

Q.  What  is  the  memorandum  as  to  those 
names  ?  Please  read  it. 

A.  "  The  remainder  of  the  doubtful  will 
probably  join  when  the  thing  is  done ;  if 
not,  they  must  be  forced." 

Q.  Did  you  infer  from  that  memorandum 
that  those  persons  had  promised  to  join  ? 

A.  Yes,  sir,  from  this  memorandum  I 
should  infer  that  they  had  promised  to  join, 
but  had  not  given  a  final  answer — that  they 
had  made  believe  they  would  join. 

Q.  Does  not  the  memorandum  state  that 


NAVAL  COURT  MARTIAL. 


71 


they  would  "  probably  join  when  the  thing 
was  done  ?"  From  what,  then,  did  you  infer 
that  they  had  made  him  believe  they  would 
join  before  it  was  done  ? 

A.  [  mean  to  say,  that  from  that  I  should 
suppose  that  he  was  doubtful  that  they  would 
join,  from  their  answers  not  being  decided 
enough — because  their  names  being  down 
with  the  "  doubtful,"  and  their  general  con- 
duct on  board  the  vessel ;  I  don't  think 
Gedney  as  much  implicated  as  the  rest,  if 
any. 

Q.  Do  you  think  Gedney  had  been  spo- 
ken to  at  all  by  Spencer  on  this  subject  ? 

A.  I  do,  sir. 

Q.  Why  did  you  suppose  Gedney  not  so 
deeply  implicated  as  the  others,  if  his  name 
was  down  in  the  same  way  with  theirs  ? 

A.  Because  his  character  was  good;  no 
•difference  in  his  obedience  to  orders. 

Q.  Whose  names  are  down  under  the 
head  of  "  nolens  volens  ?" 

A.  Sibley,  Strummond,  Scott,  Van  Brunt, 
Smith,  Witmore,  Crawly,  Blackwell,  Rod- 
inan,  Clarke,  Nevilles,  Rilney,  Selsor,  Cor- 
ney,  Dickinson,  the  doctor,  Garratrantz,  Wal- 
tham  ;  the  one  down  as  Rilney  I  think  is 
meant  for  Riiey. 

Q.  What  did  you  infer  from  the  entry  of 
nolens  volens  ? 

A.  I  inferred  that  they  were  to  be  kept, 
willing  or  unwilling. 

Q.  What  facts  had  you,  in  the  heading  of 
these  papers,  to  infer  that  Wilson,  McKee, 
and  Gallia,  had  promised  to  join  him  ? 

A.  No,  sir,  not  from  heading. 

Q.  Count  the  number  of  the  certain  and 
doubtful,  and  say  how  many  1 

A.  Fourteen. 

BY    COMMANDER    OGDEN. 

Q.  In  Mr.  Spencer's  station-bill,  are  not 
the  names  of  some  of  the  crew  who  are 
marked  "  doubtful"  placed  in  important  sta- 
tions ?  If  so,  please  to  state  their  names 
and  the  stations  assigned  them. 

A.  Yes,  sir ;  McKee  is  stationed  at  the 
wheel,  Wilson  at  the  cabin,  also  in  the 
steerage. 

Q.  Were  there  any  names  on  the  station- 
bill  which  did  not  appear  on  either  "  cer- 
tain" or  "  doubtful"  list  ?  State  the  particu- 
lars. 

A.  Small  is  stationed  in  the  cabin,  and 
•also  in  steerage. 

Q.  Is  not  the  arrangement  of  the  men's 


names  on  that  station-bill  such  an  arrange- 
ment as  would  give  regular  organization  for 
a  mutinous  outbreak  ? 
A.  It  certainly  would. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  examine,  before  the  council 
of  ofRcers,  any  of  those  marked  under  the 
"  certain"  or  "  doubtfftl,"  and  if  so,  whom  ? 

A.  Yes,  sir  ;  Wales,  Warner,  Gedney, 
Van  Veltzor. 

Q.  Refresh  your  recollection  by  the  min- 
utes of  the  council  of  officers,  and  state  when 
each  of  those  swore  that  he  first  heard  of  the 
mutiny. 

A.  Van  Veltzor  says,  "  when  the  com- 
mander told  the  crew  of  the  plot,  my  mind 
went  back  to  things  I  had  seen  before  Mr. 
Spencer  was  confined,  that  made  me  believe 
there  was  a  plot."  Wales  says,  "  that  on 
the  25th  of  November,  in  the  second  dog- 
watch, he  first  heard  of  the  mutiny  from  Mr. 
Spencer." 

Q.  Hearing  what  Van  Veltzor  swore,  who 
is  among  the  doubtful,  did  you  not  doubt  that 
he  had  promised  Mr.  Spencer  to  join  him  1 

A.  No,  sir,  I  did  not. 

Q.  Does  not  Van  Veltzor  give  it  to  be 
understood  that  he  knew  nothing  of  the 
mutiny  till  the  commander  addressed  the 
crew  ? 

A.  Yes,  sir. 

Q.  How,  then,  could  you  continue  to  infer 
that  he  had  promised  Mr.  Spencer  to  join 
him  ? 

A.  From  the  man's  character,  and  from 
a  person  that  I  supposed  guilty  of  mutiny ; 
his  oath  as  to  himself  being  guilty  has  very 
little  effect,  if  any. 

Q.  Having  such  a  character,  why  did  you 
examine  him  against  Mr.  Spencer,  Crom- 
well, and  Small  ? 

A.  Because  we  wished  to  find  out  as 
much  as  possible — the  idea  that  he  might 
mention  a  great  many  things  that  would  im- 
plicate others  and  not  himself. 

Q.  Did  you  suppose  a  man  who  would 
swear  falsely  in  one  particular  was  a  suita- 
ble witness  to  implicate  any  one,  and  cause 
his  life  to  be  taken. 

A.  I  supposed  this,  that  a  person  who 
would  swear  to  a  thing  to  save  himself,  there 
is  no  reason  why  he  should  not  tell  the  truth 
as  to  other  things. 

Q.  When  Wales  swore  that  on  the  night 
of  the  25th  he  first  heard  of  the  mutiny,  did 


PROCEEDINGS  OF  THE 


you  not  doubt  as  to  whether  Mr.  Spencer 
had  ever  told  any  one  before  that  night  ? 

A.  No,  sir. 

Q .  After  the  council  of  officers,  was  either 
Mr.  Spencer  or  Small  asked  as  to  their  first 
conversation  on  the  mutiny  ? 

A.  Not  to  my  knowledge. 

Q.  From  the  tima  of  the  arrest  of  Mr. 
Spencer  to  his  execution,  were  the  papers 
shown  him,  and  was  he  asked  when  he  first 
made  them  out,  and  who  had  or  had  not 
joined  him  ? 

A.  I  did  not  see  them  shown  to  him,  nor 
did  I  hear  him  asked  when  he  first  made 
them  out. 

Q.  Were  these  papers  shown  to  Small  or 
Cromwell,  and  was  either  asked  as  to  who 
were  or  were  not  in  the  scheme  ? 

A.  Not  in  my  presence  ;  I  did  not  see 
them  shown. 

Q.  Did  you  hear  Commander  Mackenzie 
announce  his  impending  execution  to  Crom- 
well, and  what  was  his  reply  ?  Did  you 
hear  the  latter  conversation  with  Mr.  Spen- 
cer and  Small  on  the  same  occasion  ?  If 
so,  state  it. 

A.  I  did  ;  his  reply  was,  "  I  am  inno- 
cent— Lord  of  the  universe  look  down  upon 
me  !"  or  words  to  that  effect ;  I  heard  no 
conversation  between  the  commander  and 
Mr.  Spencer,  to  the  best  of  my  recollection  ; 
I  did  with  Small  ;  I  do  not  remember  what 
was  said  ;  I  saw  Small  with  tears  in  his 
eyes,  and  immediately  went  forward. 

Q.  Were  you  the  officer  of  the  deck  at 
the  time  when  Wales  says  he  saw  Wilson 
drawing  out  a  handspike  ;  and  if  so,  did  he 
report  it  to  you  ? 

A.  To  the  best  of  my  recollection  I  was 
not,  and  know  it  was  not  reported  to  me. 

The  testimony  of  Acting-Master  Perry 
was  here  suspended  ;  his  evidence  was  read 
to  him  and  corrected  by  him. 

The  Court  then  adjourned  until  Monday. 
February  20,  at  10  o'clock,  A.  M. 


NAVY  YARD,          ) 
Brooklyn,  Feb.  20,  1843.  $ 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present — 

Captain  Dovvnes,     Captain  McKeever, 

Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 


Captain  Sloat,  Com'dr  Ogden, 

"       Smith,  "       Shubrick, 

"       Storer,  Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

"  To  save  the  time  of  the  court,  and  spare 
he  judge  advocate  the  trouble  of  the  labo- 
rious investigation  on  which  he  proposes  to 
nter,  as  to  the  distance  of  the  Somers  from 
various  West  India  islands,  at  the  time  of 
he  discovery  of  the  mutiny,  and  the  time 
of  the  execution,  Commander  Mackenzie 
takes  occasion  to  mention,  that  the  idea  was 
never  entertained  by  him  of  seeking  protec- 
tion against  his  crew  in  any  foreign  port, 
rom  any  foreign  power  whatever,  or  from 
any  foreign  ship  in  port,  or  at  sea,  or  any- 
where, save  in  a  port  of  the  United  States, 
or  under  the  guns  of  an  American  man-of- 
war  ;  it  being  his  deliberate  opinion,  that  a 
naval  commander  can  never  bo  justified  in 
nvoking  foreign  aid  in  reducing  an  insubor- 
dinate crew  to  obedience  ;  and  he  further 
takes  occasion  to  state,  that  his  views  in 
this  particular  were  well  known  at  the  time 
to  the  1st  lieutenant  of  the  Somers,  were 
shared  by  him,  and  by  him  communicated 
to  others  of  the  officers. 

"  Believing  that  the  United  States  ship 
Vandalia,  or  some  other  American  man-of- 
war,  might  be  at  St.  Thomas,  Commander 
Mackenzie  was  very  desirous  of  reaching 
that  port  without  the  execution  of  the  ring- 
leaders in  the  mutiny,  and  the  execution 
only  took  place  when  the  daily  and  hourly 
increasing  insubordination  of  the  crew,  ren- 
dered it  imperatively  necessary. 

"  Very  respectfully  submitted,  by  your 
most  obedient, 

"  ALEX'R  SLIDELL  MACKENZIE. 
"Feb.  20,  1843." 

Acting  Master  Perry  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  suppose  -those  on  the  nolens 
volens  list  had  been  spoken  to  by  Mr.  Spen- 
cer ? 

A.  Yes,  sir ;  I  speak  generally  of  the 
list. 

Q.  Are  not  Gagely,  Dickenson,  and  the 
doctor,  on  the  list  of  nolens  volens  ? 

A.  Yes,  sir. 


NAVAL  COURT  MARTIAL. 


73 


Q.  Did  you  ask  .the  last  three,  or  either 
of  them,  whether  Mr.  Spencer  had  ever 
spoken  to  them,  or  either  of  them,  on  the 
subject-of  mutiny  ? 

A.  I  did  not  ask  the  question. 

Q.  Did  you  suppose  that  either  Gagely, 
Dickenson,  or  the  doctor,  had  been  spoken 
to,  or  not,  on  the  subject,  by  Mr.  Spencer  ? 

A.  I  did  not  suppose  that  Dickenson,  or 
the  doctor  had,  but  I  supposed  Gagely 
might  have  been. 

Q.  Did  you,  before  the  execution,  swear, 
or  ask  any  of  the  others  on  the  nolens  vo- 
lens  list,  as  to  whether  Mr.  Spencer  had 
spoken  to  them  as  to  the  subject  of  mutiny  ? 

A.  To  the  best  of  my  knowledge  I  asked 
the  most  of  them. 

Q.  Did  they,  any  one  of  them,  then  tell 
you  Mr.  Spencer  had,  or  had  not,  spoken  to 
them,  or  him,  on  the  subject  of  mutiny  ? 

A.  To  the  best  of  my  knowledge,  they 
said  they  knew  nothing  of  the  mutiny,  until 
the  commander  spoke  to  them. 

Q.  Who  were  the  first  three  examined 
before  the  council  of  officers,  are  they  among 
the  doubtful  ? 

A.  Van  Veltzor,  Warner,  and  Gedney ; 
they  are  among  the  doubtful. 

Q.  You  have  said  that  you  thought  those 
on  the  doubtful  list,  not  marked  with  a  X, 
had  been  spoken  to  by  Mr.  Spencer,  but 
had  not  given  him  a  decided  answer ;  did 
you  ask  them,  or  either  of  them,  before 
the  execution,  whether  Mr.  Spencer  had 
spoken  to  either  of  them,  on  the  subject  of 
mutiny  ? 

A.  To  the  best  of  my  recollection,  I  ask- 
ed all  of  them,  with  the  exception  of  Wilson 
and  M'Kee. 

Q.  Did  any  of  those  last  inquired  of, 
when  you  spoke  to  them,  say  whether  Mr. 
Spencer  had  or  not  spoken  to  them,  or  either 
of  them,  on  the  subject  of  mutiny? 

A.  To  the  best  of  my  knowledge,  they 
said  he  had  not. 

Q.  Did  you  ask  Howard,  before  the  exe- 
cution (who  is  marked  with  a  X),  whether 
Mr.  Spencer  had,  or  not,  spoken  to  him,  on 
the  subject  of  mutiny*? 

A.  To  the  best  of  my  recollection,  I  did 
ask  Howard. 

Q.  Did  Howard  then  say  whether  he 
had,  or  not,  been  spoken  to  by  Mr.  Spencer 
on  the  mutiny  ? 

A.  To  the  best  of  my  recollection,  he 
said  he  had  not. 

10 


Q.  Getting  the  answers  from  all  these 
persons,  why  did  you  not  ask  Mr.  Spencer, 
who  were,  or  were  not,  his  accomplices, 
and  when  he  had  first  made  out  his  pa- 
pers ? 

A.  Because  I  had  persons  older  than 
myself  to  speak  to  him ;  to  the  best  of  my 
recollection,  it  was  against  positive  orders. 

Q.  Having  these  answers  from  those  per- 
sons you  spoke  to,  how  could  you  think 
your  crew  incapable  of  taking  charge,  or 
of  resisting  those  actually  in  the  mutiny  ? 

A.  From  the  manner  in  which  they  an- 
swered the  questions  led  me  to  believe,  that 
there  were  more  implicated  than  I  thought 
they  were  before  they  answered  the  ques- 
tion, and  from  what  I  had  noticed  before. 

Q.  You  say  you  think  those  on  the  doubt- 
ful list,  not  marked  with  a  X ,  had  prom- 
ised, but  not  given  a  decided  answer,  and 
you  say  you  thought  Howard  innocent,  and 
Gedney  not  so  deeply  implicated  as  the 
rest ;  take  out  those  two  names  from  the 
number  of  doubtful  and  certain,  and  say  how 
many  remain? 

A.  There  are  twelve. 

Q.  Do  you,  or  not  mean  to  say,  that  those 
marked  doubtful  without  the  X ,  had  given 
no  decided  answer  at  the  time  of  the  arrest 
of  Mr.  Spencer,  and  what  did  you  mean  us 
to  infer,  as  to  time,  when,  in  Saturday's  ex- 
amination, you  said  you  supposed  they  had 
not  given  a  decided  answer  ? 

A.  I  meant  to  say  that  at  the  time  the 
list  was  made  out,  they  had  given  no  de- 
cided answer,  and  I  meant  so  on  Saturday, 
when  the  list  was  before  me. 

Q.  What  means  did  you  take  to  ascertain 
whether,  after  the  list  was  made  out,  and 
before  the  arrest,  they  had  given  a  decided 
answer  ? 

A.  I  inquired  if  they  knew  anything 
about  it,  from  some  of  the  crew — that  was 
all  the  means  I  could  take. 

Q.  At  the  time  of  the  arrest  of  Cromwell, 
did  a  pistol  go  off,  and  if  so,  in  whose  hand 
was  it  ? 

A.  I  heard  a  pistol  go  off,  but  I  did  not 
see  in  whose  hands  it  went  off. 

Q.  Did  you  not  afterward  learn  from 
Lieutenant  Gansevoort  that  it  was  in  his 
hands  ? 

A.  I  did,  sir. 

Q.  Did  you  learn  whether,  or  not,  it  was 
a  ship's  pistol  ? 

A.  I  did — it  was  not. 


74 


PROCEEDINGS  OF  THE 


Q.  Was  this  discharge  of  the  pistol  be- 
fore the  rush  aft  on  the  27th  ? 

A.  To  the  best  of  my  recollection  it  was 
not ;  it  was  about  an  hour  to  an  hour  and  a 
half  after. 

Q.  At  the  time  of  carrying  away  of  the 
boom  tackle,  did  you  order  any  particular 
number  of  men  to  come  aft  ? 

A.  I  gave  t\#6  orders — I  said  first,  "  Some 
of  you  come  aft;"  the  second  order,  I  called 
two  or  three  by  name,  and  ordered  the  oth- 
ers forward. 

Q.  Did  all  who  did  come,  come  before 
your  second  order  ? 

A.  Yes,  sir. 

Q.  Did  you,  at  the  time,  reprove  the  men 
for  coming  in  a  greater  number  than  was 
necessary,  and  if  so,  what  was  their  account 
of  their  conduct  ? 

A.  I  did  not  reprove  them ;  I  ordered 
them  forward,  and  they  disobeyed  the  order 
several  times  ;  I  might  have  said  this,  "  This 
was  a  time  when  you  must  not  disobey  or- 
ders, a  time  when  you  might  lose  your  lives 
for  it,"  which  was  my  usual  order. 

Q.  Had  this  order,  as  to  the  danger  of 
the  men  from  not  obeying  orders,  been  told 
the  crew,  before  the  accident  to  the  boom- 
tackle  ? 

A.  I  have  no  doubt  it  had,  by  many. 

Q.  Knowing  of  this  previous  order,  how 
could  you  have  been  surprised,  that  an  in- 
definite direction  to  a  body  of  men,  "  Some 
of  you  come  aft,"  should  bring  each  man 
that  heard  it  ? 

A.  Because,  during  the  same  time,  they 
had  disobeyed  other  orders — had  to  be  told 
two  or  three  times. 

Q.  Was  not  the  brig  rolling  much,  at  the 
time  of  the  accident  to  the  boom-tackle  ? 

A.  She  was. 

Q.  Did  the  officers  wear  arms  after  the 
execution,  and  what  arms  ? 

A.  They  did  ;  they  wore  two  pistols  and 
cutlass — the  wardroom  officers,  Mr.  Rogers 
and  Mr.  Thompson,  wore  these  ;  the  re- 
mainder of  the  steerage  officers  wore  a  cut- 
lass and  a  pistol ;  and  the  petty  officers 
wore  each  a  cutlass  ;  all  those  who  had  fire- 
arms wore  also  a  cartouch-box ;  I  think  it 
was  eight  ball  cartridges. 

Q.  Did  you  not  refer  to  the  incumbrance 
of  these  arms,  as  one  of  the  sources  of  ex- 
haustion to  the  officers  before  the  execution  ? 

A.  I  did,  sir. 

Q.  You  have  corrected  your  testimony, 


and  now  state  that  it  was  not  till  after  t 
execution,  that  the  officers  were  put  in  th 
watches  instead  of  four ;  if  they  wore  t 
same  arms,  and  were  more  on  duty  by  kee 
ing  a  quicker  recurring  watch  than  befo 
the  execution,  how  is  it  that  you  say  th 
could  not  have  held  out,  but  for  the  ex 
tion,  more  than  24  or  36  hours  ? 

A.  From  the  time  of  the  arrest  up  to  t 
execution,  we  did  not  get  more  than  th 
or  four  hours  sleep,  during  the  twenty-fo 
hours,  and  that  at  intervals ;  the  office 
were  on  the  spar  and  birth-deck,  during  t 
remainder  of  the  time,  generally  movi 
about  among  the  crew  ;  that  person  who  h 
the  watch  below,  kept  his  watch  on  the  bir 
deck ;  after  the  execution  we  got  our  sle 
more  regularly,  our  meals  regularly,  and  t 
anxiety  of  mind  was  over  most  of  it,  whi 
was  not  the  case  before  the  execution 
were  in  watch  and  watch  after  the  four  ot 
er  prisoners  were  taken,  and  we  would 
had  to  remain  so,  if  the  execution  had  n 
taken  place,  until  we  got  into  port. 

Q.  Was  Wilson  taken  out  of  irons,  a 
his  arrest  on  the  passage  home  ?  if  so,  ho 
frequently,  and  for  what  purpose  ? 

A.  He  was  taken  out  of  hand-irons  fo 
or  five  different  days,  and  put  in  irons, 
ring  meal  hours  from  twelve   to  one,  an 
when  out  of  hand-irons,  tied  to  a  bolt  in  the 
side  of  the  vessel,  for  the  purpose  of  maki 
south-westers,   and  sewing  the  topgalla 
steering-sail  covers  into  bags,  for  the  p 
pose  of  making  the  four  prisoners  comfo 
able  on  their  way  home. 

Q.  Do  you  mean  to  say  that  Wilson  th 
made  south-westers  only  for  the  four  pri 
oners  ? 

A.  No,  sir,  I  do  not;  he  was  making 
south-westers  for  those  officers  who  had  to 
remain  on  deck  as  watch  officers — they 
were  never  finished. 

Q.  Do  you  mean  to  say  that  Wilson  w 
put  in  irons  when  he  would  eat  his  meals 

A.  Yes,  sir  ;  and  cast  loose  also  from  th 
bolt. 

Q.  In  your  consultation  among  the  offi- 
cers, was,  or  not,  it  one  of  your  reasons,  or 
of  theirs,  for  putting  Cromwell  to  death,  that 
he  understood  navigation,  and  thus  by  re- 
moving him  and  Small,  who  were  alone,  of 
the  suspected  portion  of  the  crew,  acquai 
ed  with  navigation,  no  one  could  be  left  c 
pable  of  taking  command,  in  case  of  the 
outbreak  of  a  mutiny  ? 


01    | 

,t 

;he 


NAVAL  COURT  MARTIAL. 


75 


A.  No,  sir ;  because,  to  the  best  of  my 
knowledge,  Mr.  Spencer  was  capable,  with 
Bowditch  before  him,  of  taking  the  vessel 
into  port ;  I  might  also  say  that  I  know  Mr. 
Spencer  could  take  sights  very  correctly, 
from  his  having  taken  them  with  me. 

Q.  Was,  or  not,  it  one  of  the  reasons  for 
putting  Mr.  Spencer,  Cromwell,  and  Small, 
to  death,  that  they,  of  the  suspected  portion 
of  the  crew,  were  only  capable  of  naviga- 
tion ? 

A.  That  was  one  of  the  small  reasons  ;  in 
answering  these  questions,  I  speak  from 
my  own  opinions. 

Q.  Was  not  this  capacity  for  navigation 
a  leading  reason  as  to  Cromwell  ? 
A.  No,  sir. 

Q.  Turn  to  the  log-book ;  was  a  sail 
seen  on  the  28th  of  November,  and  was  any 
effort  made  to  overhaul  her  ? 

A.  A  sail,  by  the  log-book,  discovered  on 
the  28th,  three  points  on  the  larboard  bow  ; 
to  the  best  of  my  recollection,  no  efforts 
were  made  to  overhaul  her. 

Q.  Have  you  any  personal  remembrance 
of  that  vessel  being  reported  ? 

A.  I  can't  say  positively  that  I  have. 
Q.  With  such  accuracy  as  a  pair  of  di- 
viders will  give,  tell  me,  from  the  chart,  the 
distance,  at  noon,  of  the  Somers,  at  each  day, 
from  the  26th  of  November  to  the  1  st  De- 
cember, inclusively,  from  each  of  the  six 
nearest  islands,  by  name. 
A.  OQ  the  26th,  to 

Martinique       .         .       1345  miles. 
Dominique  .  1375     " 

Guadaloupe      .         .       1373     « 
Antigua       .         .  1410     " 

Barbada  .         .       1410     " 

Anguilla      .         .  1480     " 

On  the  27th,  at  noon, 

Martinique       .         .       1135  miles. 
Dominique  .  1158     " 

Guadaloupe     .          .        1163     " 
Antigua       .         .  1205     " 

Barbada  .         .        1065     " 

St.  Lucia    .         .  1140     " 

On  the  28th,  at  noon, 

Barbadoes        .          .          872  miles. 
St.  Lucia    .         .         .     950     " 
Martinique       .          .  940     " 

Dominique  .         .     963     " 

Guadaloupe     .         .          963     " 
St.  Vincent          .         .     965     " 
On  the  29th,  at  noon, 

Barbadoes  690  miles. 


St.  Lucia 
Martinique 
Dominique 
St.  Vincent     . 
Guadaloupe 
On  the  30th,  at  noon, 
Martinique 
Barbadoes 
Dominique 
Guadaloupe 
Antigua 
Barbada 


765  miles. 
768     " 
780     « 
780     " 
780     " 

570  miles. 
515  " 
575  " 
570  « 
620  " 
630  " 


On  December  1st,  at  noon, 

Barbadoes       .         .  335  miles. 

Martinique  .         .     358     " 

Dominique  .  .  364  " 
Guadaloupe  .  .  355  " 
Antigua  .  .  388  " 

St.  Lucia  .         .     372     " 

Q.  Tell  the  number  of  miles  for  each 
day,  from  the  28th  of  November  to  the  1st  of 
December,  inclusive,  that  the  Somers  sailed. 
A.  From  noon  of  26th  to  noon  of  27th, 
she  sailed  per  log      .  206  miles. 

Next  day  .  .  .184  " 
Next  day  .  .  .  144  " 
Next  day  .  $  .  .  176  " 
Next  day  .  .  .  191  " 
up  to  noon  on  December  1st. 

Q.  During  the  time  of  the  last  question, 
was  the  Somers  in  the  trade -winds  ? 
A.  She  was. 

Q.  Had  you  changed  your  course  on  the 
30th  of  November  or  1st  of  December,  for 
any  of  the  islands  on  your  lee,  would  you 
have  had  a  leading  or  free  wind  ? 
A.  She  would  have  had  a  free  wind. 
Q.  On  the  evening  of  the  25th  Novem- 
ber, how  far  were  you  from  St.  Thomas  ? 

A.  1709  miles;  the  exact  distance  is 
1722  miles,  at  6  o'clock,  P.  M. 

BY    CAPTAIN    BOLTON. 

Q.  Was  confidence  so  far  restored,  after 
the  execution,  that  the  officers  relinquished 
their  arms,  took  their  accustomed  routine  of 
duty,  and  slept  or  rested  in  tranquillity  or 
security  ? 

A.  No,  sir;  confidence  was  restored  so 
much,  the  officers  got  more  sleep  a  great 
deal,  and  felt  themselves  confident  that  the 
vessel  was  under  their  own  charge  ;  the 
crew  were  cheerful,  and  obeyed  the  orders  ; 
the  crew  felt  apparently  as  if  they  were  free 
from  all  charge  of  being  concerned  in  the 
mutiny,  and  looked  cheerful  on  that  account. 


76 


PROCEEDINGS  OF  THE 


BY  COMMANDER  MACKENZIE. 

Q.  Had  the  course  of  the  Somers,  from 
the  time  of  her  leaving  Liberia  until  she  made 
Sombrero,  been  otherwise  changed  than  to 
counteract  the  change  in  the  variation  of 
the  compass,  in  order  to  pursue  a  perfectly 
direct  course  ? 

A.  No,  sir,  no  change  otherwise. 

Q.  What  effect  would  a  departure  from 
her  direct  course,  in  fulfilment  of  the  public 
duty  on  which  she  was  bound,  have  had  on 
the  confidence  of  the  officers  in  their  ability 
to  defend  the  vessel  and  carry  out  the  inten- 
tions of  the  government  ? 

A.  It  would  have  broken  all  confidence 
in  the  commander ;  that  is,  he  would  have 
been  considered  as  not  capable  of  taking  the 
vessel  where  she  was  destined  ;  and  it  also 
would  have  given  confidence  to  the  evil 
disposed  part  of  the  crew. 

Q.  What  effect  would  this  openly  implied 
intention  to  seek  an  asylum  in  a  French  or 
other  foreign  port,  for  the  commander  and 
officers  of  the  Somers,  and  a  place  where 
the  mutineers  could  be  imprisoned  and  kept 
for  trial,  have  had  on  the  apprehension  of 
mutineers  imprisoned  and  at  large  ? 

A.  It  would  have  had  the  effect  to  make 
them  more  daring  and  desperate  to  attempt 
a  rescue,  and  for  the  fear  that  those  con- 
fined would  turn  against  them  in  this  evi- 
dence. 

Q.  How  would  such  change  of  course 
and  purpose  have  corresponded  with  the 
previous  conduct  in  driving  the  vessel  for- 
ward on  her  direct  course,  preserving  the 
ordinary  routine  of  duty  the  same  after  as 
before  the  mutiny,  and  showing  always  a 
steady,  calm,  and  immovable  front  ? 

A.  It  corresponded  in  this  way  :  the  offi- 
cers endeavored  to,  and  I  believe  did,  make 
themselves  confident,  in  the  eyes  of  the 
crew,  in  endeavoring  to  carry  on  the  duty 
the  same  as  it  was  before  the  arrest  of  Mr. 
Spencer ;  it  would  have  broken  down  all 
that  confidence  in  the  eyes  of  the  crew,  and 
•  made  it  appear  to  them  as  if  the  officers  had 
given  up  all  hopes  of  saving  the  vessel,  and 
taking  her  to  the  United  States. 

Q.  Did  you  or  not,  before  the  execution, 
believe  that  many  of  the  doubtful  had  be- 
come certain  before  the  arrest  of  Mr.  Spen- 
cer ? 

A.  I  did,  sir. 

Q.  When  you  inquired  of  the  individuals 
of  the  crew  on  Mr.  Spencer's  list,  whether 


Mr.  Spencer  had  spoken  to  them  about 
plot,  and  they  told  you  he  had  not  spoken 
to  them,  did  you  believe  them  ? 

A.  1  did  not,  most  of  them. 

Q.  If  you  do  or  do  not  believe  that  Mr. 
Spencer  had  imparted  his  scheme  of  piracy 
to  most  of  those  on  his  list,  and  to  many  not 
on  his  list,  to  what  portion  of  the  crew  do 
you  suppose  his  scheme  to  have  been  im- 
parted, either  by  himself  or  his  agents  ? 

This  question  being  objected  to  by  the 
judge  advocate,  the  court  was  cleared,  and 
on  the  opening  thereof  the  judge  advocate 
announced  to  Commander  Mackenzie  that 
the  question  could  not  be  put  in  its  present 
terms. 

Q.  You  have  said  that,  judging  from  the 
manner  of  Howard,  you  believed  him  to  be 
innocent  of  an  intention  to  join  Mr.  Spen- 
cer's plot.  Judging  from  the  manner  of  the 
rest  of  the  crew,  what  proportion  of  them  do 
you  believe  to  have  been  guilty  of  such  in- 
tention ? 

A.  I  should  think  about  two  thirds,  and 
after  two  thirds  increasing  daily. 

Q.  In  uniting  in  the  opinion  of  the  coun- 
cil of  officers,  that  the  execution  of  Mr. 
Spencer,  Cromwell,  and  Small,  was  indis- 
pensable to  the  safety  of  the  Somers,  were 
or  were  you  not  influenced  by  Mr.  Spencer's 
list,  by  the  statement  of  Wales  as  to  Mr. 
Spencer's  assertion  to  him  that  he  had 
twenty  of  the  crew  with  him,  and  by  the 
general  insubordination  of  the  crew  ? 

A.  I  was. 

Q.  When  a  boy  fell  overboard,  on  the 
passage  to  Porto  Rico,  did  not  two  boats  go 
in  search  of  him,  and  did  not  Lieutenant 
Gansevoort  go  in  the  second  boat,  and  did 
not  the  two  boats  together  take  out  of  the 
vessel,  beside  the  three  officers  you  have 
named,  the  best  and  most  willing  of  the 
crew  ? 

A.  Two  boats  did  put  off,  and  Lieutenant 
Gansevoort  did  go,  and  it  took  out  the  best 
of  the  crew. 

Q.  You  say  that  you  believe  that  the| 
main  top-gall  antmast  was  carried  away  with  j 
the  intention  of  creating  confusion  in  the 
ship,  and  attempting  a  rescue  of  the  prison- 1 
ers  ;  how  far  do  you  believe,  if  you  believe  j 
it  at  all,  from  what  facts,  that  intention  to  j 
have  been  connected  with  knocking  Gagely 
overboard,  and  defeated  by  his  accidental 


escape  j 

A.  I  can't  say  it  was  the  intention 


tal 

• 


NAVAL  COURT  MARTIAL. 


77 


knock  Gagely  overboard ;  I  believe  the 
topgallantmast  was  carried  away  to  create 
confusion  ;  do  not  know  whether  they  were 
aware  that  Gagely  was  on  the  yard  or 
not. 

Q.  If  a  boy  was  on  the  mainroyal-yard, 
could  not  men  hauling  on  the  mairiroyal- 
brace  at  the  forefiferail  see  the  boy  on  the 
royal-yard  ? 

A.  Yes,  sir,  I  know  they  could. 

Q.  If  the  object  of  creating  confusion 
by  carrying  away  the  maintop-gallantmast 
was  defeated,  would  not  the  maintopmast- 
head  offer  a  good  position  for  forming  some 
new  plan  of  rescue  out  of  hearing  of  the 
officers  1 

A.  It  certainly  would. 

Q.  Did  not  the  commander  take  great 
precaution,  immediately  after  the  maintop- 
gallantmast  was  carried  away,  to  prevent 
confusion  ?  were  not  the  crew  variously 
employed  in  breaking  out  and  restoring  the 
booms,  scraping,  slushing,  and  cutting  fid 
and  sheare-holes  in  the  sparetopgallantmast, 
clearing  the  wreck  aloft,  unreefing  and  coil- 
ing down  running-rigging,  and  bringing  the 
light  sails  to  the  yards  afresh  ? 

A.  Yes,  sir. 

Q.  Was  not  the  fact  of  the  supposed 
object  of  the  mutineers  being  postponed, 
and  the  measures  taken  by  the  commander 
to  prevent  confusion,  and  the  absence  of 
any  apparent  intention  of  the  mutineers  at 
that  moment  to  attempt  a  rescue,  a  sufficient 
reason  why  you  should  not  have  armed 
yourself  with  a  battle-axe  as  suggested  by 
the  judge  advocate  ? 

A.  Yes,  sir ;  as  I  stated  before,  I  had 
been  on  deck  a  short  time — a  few  moments  : 
I  saw  that  no  attempt  would  be  made  then 
to  attempt  a  rescue. 

Q.  Did  you  ever  know  an  officer  of  the 
navy  as  intimate  with  the  crew  as  Mr. 
Spencer  was  ? 

A.  No,  sir,  I  never  did. 

Q.  Have  you  ever  noticed  any  difference 
between  the  commander's  treatment  of  Mr. 
Spencer  and  of  the  other  officers  previous 
to  his  arrest  ? 

A.  I  never  have. 

BY    CAPTAIN    PAGE. 

Q.  Before  the  execution,  did  or  did  not  the 
fact,  of  Small's  name  not  being  down  on  the 
list  of  certain,  cause  any  fears  in  your  mind 
that  Midshipman  Spencer  might  be  certain 


of  others  whom  he  had  not  marked  down 
on  that  list  ? 

A.  I  can't  say  that  that  did  particularly; 
I  had  my  fears  from  circumstances,  I  can't 
say  from  what  particular  ones. 

Q.  In  forming  your  judgment  as  to  the 
necessity  of  the  execution,  were  you  or  not 
principally  influenced  by  the  behavior  of 
the  crew,  rather  than  by  the  written  lists  of 
Spencer's  associates  ? 

A.  Yes,  sir,  more  by  the  behavior  of 
the  crew  ;  at  the  same  time  a  great  deal  by 
his  list. 

BY    CAPTAIN    BOLTON. 

Q.  Had  you  stated  all  that  fell  under 
your  observation,  or  met  your  hearing,  bear- 
ing upon  the  supposed  mutiny  ? 

A.  I  recollect  nothing  at  this  time. 

The  examination  of  Acting-Master  Perry 
here  closed,  his  evidence  was  read  to  him 
and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Tuesday),  February  21,  at  10  o'clock, 
A.  M. 

NAVY  YARD,  ) 

Brooklyn,  Feb.  21,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

Smith,  "       Shubrick, 

"       Storer,  Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Acting-Master  Perry  recalled. 

EXAMINED  BY   COMMANDER    MACKENZIE. 

Q.  You  have  stated  your  belief,  founded 
on  your  observation,  that  many  of  the  doubt- 
ful on  the  list  of  Mr.  Spencer  had  become 
certain  before  the  arrest  of  Mr.  Spencer; 
state  your  opinion,  founded  on  like  observa- 
tion, as  to  the  effect  of  the  arrest  of  Mr. 
Spencer  on  the  number  and  temper  of  the 
mutinous  ?  • 

A.  I  think  it  increased  the  number,  and 
also  made  them  more  desperate  :  my  rea- 
son for  thinking  they  increased  daily  is, 
that  those  who  had  not  promised  to  join, 


78 


PROCEEDINGS  OF  THE 


but  had  listened  to  what  Mr.  Spencer  or 
his  accomplices  had  said,  were  considered 
guilty ;  and,  knowing  this,  they  no  doubt 
would  join  in  an  attempt  to  rescue  the  pris- 
oners, and  take  the  vessel  from  the  charge 
of  the  officers  and  those  who  had  really 
joined  them,  made  more  desperate  from 
thinking  that  they  would  be  discovered  to 
the  officers  through  those  already  con- 
fined. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Was  not  M'Kee  or  M'Kinley  pun- 
ished after  the  arrest  of  Mr.  Spencer  ? 

A.  No,  sir. 

Q.  Was  not  Waltham  punished  after  the 
arrest  of  Mr.  Spencer  and  before  the  exe- 
cution? and,  if  so,  how  often? 

A.  Yes,  sir,  he  was  punished  twice  :  the 
first  offence,  28th  November,  for  stealing — 
twelve  lashes  with  the  cats  ;  the  second 
offence,  on  the  29th,  punished  with  twelve 
lashes  with  the  cats  for  stealing  three  bot- 
tles of  liquor  from  the  ward-room  mess,  and 
attempting  to  give  it  to  Daniel  M'Kinley. 

Q.  Do  you  know  who  reported  Waltham 
on  the  last  occasion  ? 

A.  I  believe  it  was  M'Kinley. 

Q.  After  this  report  of  M'Kinley,  did 
you  believe  him  and  Waltham  accomplices 
together  with  Mr.  Spencer  ? 

A.  I  did,  sir — that  being  a  particular  rea- 
son for  thinking  so. 

BY  CAPTAIN  PAGE. 

Q.  In  Mr.  Spencer's  list  where  do  you 
find  the  names  of  Wilson  and  M'Kee  ? 

A.  I  find  M'Kee  is  at  the  wheel,  Wilson 
at  the  cabin,  also  at  the  steerage. 

Q.  Do  you  find  them  under  the  head  of 
certain  ? 

A.  I  do  not. 

Q.  Before  the  execution,  and  finding 
them  where  you  did  on  that  paper,  were 
you  or  not  as  satisfied  that  Mr.  Spencer  was 
certain  of  them  as  if  you  had  found  them 
under  the  head  of  certain  ? 

A.  Yes,  sir. 

Q.  Before  the  execution,  in  view  of  these 
circumstances,  did  you  or  not  form  the  con- 
clusion that  the  list  of  certain  was  not  full 
and  complete  ? 

A.  I  did,  sir. 

Q.  Before  the  execution,  judging  from 
the  conduct  of  the  two  men  Small  and 
Cromwell,  and  without  regard  to  the  paper 


of  Spencer,  which  did  you  most  suspect  of 
being  engaged  in  the  mutiny  ? 

A.  I  thought  that  Cromwell  was  in  this 
way  ;  I  supposed  he  was  a  ringleader. 

BY  THE    JUDGE  ADVOCATE. 

On  this  cruise  before  the  execution,  w? 
either  M'Kee  or  M'Kinley  flogged  ? 

A.  M'Kee  I  think  not,  and  I  know  M'- 
Kinley was  ;  I  remember  only  once  for  dis- 
obeying the  commander's  orders  on  shore 
and  overstaying  his  liberty,  as  I  understood. 

Q.  Give  your  reasons  for  suspecting, 
of  your  knowledge  and  observation,  Crom- 
well as  an  accomplice  of  Mr.  Spencer? 

A.  I  saw  that  he  had  become  absent,  n< 
so  attentive  to  his  duty  as  he  was  during  the 
first  part  of  the  cruise,  his  disposition  to 
rule  and  command,  and  his  general  manner. 

Q.  Have  you  not  heard  Lieut.  Gansevooi 
praise  Cromwell  as  an  invaluable  man,  am 
have  you  not  heard  him  say  that  he  would, 
on  his   return,  try   and  have   him  made 
boatswain  ? 

A.  I  heard  him  say,  during  the  first  pai 
of  the  cruise,  that  he  was  an  invaluable 
man  ;  to  the  best  of  my  recollection,  I  hav< 
not  heard  Lieut.  Gansevoort  say  he  woul( 
on  his  return  try  and  have  him  made 
boatswain. 

Q.  Was  not  the  mast  carried  away 
the  27th,  immediately  after  setting  the  sky- 
sail  ? 

A.  It  was  fifteen  minutes  after  the  sky- 
sail  was  set. 

BY  CAPTAIN  OGDEN. 

Q.  You  have  stated,  in  answer  to  aques 
tion  from  the  judge  advocate,  that  had  the 
brig's  course  been  changed  so  as  to  steer 
for  the  nearest  island,  you  would  have  had 
a  free  or  leading  wind  ;  had  you  not  already 
a  free  wind,  and  did  not  the  vessel  sail 
faster  on  the  given  course  than  if  the  course 
had  been  changed,  as  proposed  in  the  ques- 
tion above  alluded  to  ? 

A.  She  sailed  faster  with  the  wind  on 
the  quarter,  and  had  she  been  kept  away 
for  the  nearest  island,  she  would  have  been 
before  the  wind. 

Q.  Had  not  the  skysails  and  royal-stud- 
dingsails  been  repeatedly  carried  when 
blowing  much  fresher,  and  sailing  with  the 
wind  farther  forward  ? 

A.  They  had  ;  we  were  going  seven  and 
a  half  knots  at  the  time  the  mast  was  car- 
ried away. 


NAVAL  COURT  MARTIAL. 


Commander  Mackenzie  then  presented 
the  following  paper,  which  he  read  to  the 
court : — 

"  May  it  please  the  court :  Several  of  the 
most  important  witnesses  among  the  appren- 
tices of  the  Somers  having  recently  disap- 
peared mysteriously,  in  a  manner  to  indicate 
an  agency  to  injure  my  cause  before  this 
court,  and  the  length  to  which  this  trial  is 
drawing  out,  being  likely  to  furnish  time  for 
additional  inroads  in  the  number  of  those 
important  witnesses,  I  propose,  with  the 
permission  of  the  court,  to  suspend  for  the 
present  the  examination  of  the  officers,  in 
order  to  introduce  testimony  more  directly 
bearing  on  the  guilt  of  Cromwell,  ere  it  be 
too  late  to  obtain  it. 

"  I  have  the  honor  to  be,  very  respect- 
fully, your  most  obedient, 

"ALEX.  SLIDELL  MACKENZIE, 

"  Commander" 

William  Neville  recalled. 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Did  you  ever  see  Mr.  Spencer  and 
Cromwell  together  in  private  conversation 
on  board  the  Somers  ?  if  so,  state  when  and 
where  ? 

A.  I  have  seen  them  after  we  left  Ma- 
deira on  the  forescuttle  ;  I  have  seen  them 
before  and  after  we  left  the  coast  of  Africa, 
both. 

Q.  When  you  observed  them  together, 
in  what  tone  or  manner  were  they  con- 
versing ? 

.A.  In  a  low  tone  ;  I  could  not  hear  what 
they  said. 

Q.  Were  they  two  alone,  or  was  any 
person  with  them  ? 

A.  They  were  alone. 

Q.  Did  you  in  any  of  these  private  con- 
versations see  Mr.  Spencer  exhibit  a  paper 
to  Cromwell?  If  so,  describe  the  paper 
according  to  your  recollection  of  it? 

A.  Yes,  sir ;  I  saw  him  show  him  a  pa- 
per at  the  storeroom  door  ;  it  was  about  the 
size  of  a  half  a  sheet  of  paper ;  it  was  yel- 
lower than  writing  paper — had  marks  on  it 
like  crosses  ;  it  was  not  English  writing, 
and  geometrical  figures  on  the  back. 

Q.  How  long  was  this  before  Mr.  Spen- 
cer's arrest  ? 

A.  About  two  weeks. 

Q.  Did  the  paper  you  then  saw  resemble 


either  of  those  now  shown  to  you  ?  and  if 
so,  which  of  them  ? 

(The  papers  shown.) 

Q.  Yes,  sir  ;  it  resembled  the  one  mark- 
ed No.  2  by  the  court  of  inquiry. 

Q.  From  your  recollection  of  its  appear- 
ance, do  you  believe  that  to  be  the  paper, 
then,  shown  by  Mr,  Spencer  to  Crom- 
well ? 

.A.  To  the  best  of  my  belief,  it  is. 

Q.  How  often,  according  to  your  recol- 
lection, have  you  seen  Mr.  Spencer  and 
Cromwell  in  private  conversation? 

A.  I  suppose  I  have  seen  them  talking 
together  fifty  times. 

Q.  Have  you  ever  seen  Mr.  Spencer, 
Cromwell,  arid  Small,  in  private  conversa- 
tion ?  If  so,  when  and  where  ? 

A.  Yes,  sir;  I  have  seen  them  talking 
on  the  forecastle  between  Madeira  and  Cape 
Mesurado. 

Q.  Was  it  by  day  or  night  ? 

A.  I  have  seen  them  in  the  night. 

Q.  After  the  arrest  of  Mr.  Spencer,  what, 
according  to  your  observation,  was  the  tem- 
per and  conduct  of  the  crew  ? 

A.  They  appeared  to  be  disorderly — they 
did  not  appear  to  attend  to  their  duty  as  well 
as  they  did  before. 

Q.  What  signs  of  dissatisfaction  did  you 
observe  ?  what  conversation,  if  any,  did  you 
overhear  ? 

A.  Gathering  together  in  the  gangways — 
not  obeying  an  order  when  passed  by  an 
officer  of  the  deck ;  I  did  not  hear  any  con- 
versation. 

Q.  Did  you  hear  any  opinion  expressed, 
and  what  opinion,  if  any,  as  to  the  propriety 
of  putting  Mr.  Spencer  in  irons  ? 

A,  I  have  heard  some  of  them  say  that- 
they  thought  it  was  not  right  to  put  Mr. 
Spencer  in  irons. 

Q.  Have  you  had  any  conversation  with 
Mr.  Spencer  about  his  having  command  of 
a  vessel  ?  If  so,  what  ? 

A.  Yes,  sir ;  he  has  said  that  he  would 
soon  have  command  of  a  vessel,  and  asked 
me  if  I  would  like  to  sail  with  him. 

Q.  State  when  and  where  such  conver- 
sation took  place,  and  all  that  passed. 

A.  After  we  left  Cape  Mesurado,  on  the 
forecastle — a  few  days  after  we  left  Cape 
Mesurado  ;  he  was  showing  me  how  to  take 
an  altitude  of  the  moon ;  when  this  passed 
we  were  standing  on  the  hencoop. 

Q.  Have  you  had  any  conversation  with 


80 


PROCEEDINGS  OF  THE 


Mr.  Spencer  about  the  commander  ?  and  if 
so,  state  it. 

A.  Yes,  sir  ;  he  has  asked  me  if  I  did 
not  think  the  commander  hard  in  flogging 
the  boys.  I  told  him  that  I  thought  the 
commander  had  done  nothing  more  than  his 
duty ;  at  that  time  he  called  the  commander 
a  damned  son  of  a  bitch. 

Q.  What  was  Mr.  Spencer's  conduct,  or 
what  did  he  do  when  showing  Cromwell 
the  paper  ? 

A.  He  had  a  lead  pencil  in  his  hand ; 
he  appeared  to  be  pointing  to  the  paper,  as 
though  he  was  telling  Cromwell  what  it 
was. 

Q.  Did  you  ever  hear  Mr.  Spencer  ask 
Cromwell  what  sort  of  a  slaver  the  Somers 
would  make  ?  State  what  passed. 

A.  Yes,  sir ;  I  heard  him,  as  I  was  pas- 
sing, ask  Cromwell  if  the  Somers  would  not 
make  a  fine  slaver  ;  that  is  all  I  heard. 

Q.  Did  you  ever  hear  Mr.  Spencer  say 
anything  about  throwing  the  commander 
overboard  ?  If  so,  state  all  that  passed. 

A.  Yes,  sir  ;  once  he  was  coming  for- 
ward by  the  bitts,  after  the  commander  had 
reproved  him  ;  he  said  he  would  throw  the 
commander .  overboard  the  first  chance  he 
got. 

BY  THE  JUDGE  ADVOCATE. 

Q.  What  was  your  duty  aboard  ship  ? 

A.  I  was  second  captain  of  the  foretop. 

Q.  When  did  you  first  enter  the  service  ? 

.A.  In  June,  1840,  I  believe. 

Q.  When  were  you  first  placed  aboard 
the  Somers  ? 

A.  In  May,  1842. 

Q.  Who  were  your  most  intimate  friends 
of  the  crew  ? 

A.  I  can't  say  who  they  were  ;  I  was 
intimate  with  mostly  all  the  crew. 

Q.  Who  slept  in  the  next  hammock  to 
you  ? 

A.  Van  Veltzor  part  of  the  time,  and  part 
of  the  time  a  boy  by  the  name  of  Rice. 

Q.  Who  were  stationed  with  you  at  your 
gun? 

A.  Mallory,  By  water,  Dowd,  Swift,  Man- 
ning, Van  Brunt. 

Q.  What  part  of  the  cruise  did  Rice  sleep 
in  the  next  hammock  to  you  ? 

A.  The  latter  part,  after  the  arrest ;  and 
before  too,  I  believe. 

Q.  What  time  of  the  day  was  it  you  saw 
Mr.  Spencer  and  Cromwell  in  conversation 


— at  the  time  Mr.  Spencer  was  showing 
Cromwell  the  paper  ? 

A.  I  think  it  was  in  the  afternoon; 
can't  say  what  time. 

Q.  How  long  did  you  observe  them 
conversation  with  the  paper  out  ? 

A.  About  two  minutes. 

Q.  What  were  you  going  by  there  for? 

A.  I  don't  know  that  I  was  going  by  thei 
for  anything  particular ;  I  was  going  roui 
the  foremast. 

Q .  Where  is  the  storeroom — on  the  spar- 
deck  ? 

A.  On  the  berth-deck. 

Q.  Did  you  notice  anybody  by  ? 

A.  No,  sir. 

Q.  How  near  were  Cromwell  and  Spen- 
cer to  the  hatch  ? 

A.  Almost  under  the  forescuttle. 

Q.  Were    Mr.    Spencer   and    Cromwel 
still  talking  when  you  last  saw  them  at  that 
time  ? 

A.  Yes,  sir. 

Q.  Were  you  not  within  a  few  feet  of 
them  ? 

A.  Within  about  two  feet  as  I  passed  by. 

Q.  Was  Cromwell's  face  or  back  to  yoi 
when  you  first  saw  them  ? 

A.  His  back  was  to  me. 

Q.  Was  Spencer's  face  toward  you  ? 

A.  No,  sir. 

Q.  Had  you  just  come  down  the  hatch 

A.  No,  sir. 

Q.  When  you  last  saw  them  there,  die 
you  still  see  the  paper  ? 

A.  Yes,  sir ;  he  had  the  paper  in  his 
hand. 

Q.  Did  you  hear  any  of  the  remarks  thei 
between  Mr.  Spencer  and  Cromwell  ? 

A.  No,  sir. 

Q.  Was  Mr.  Spencer  holding  the  paper 
immediately  in  front  of  Cromwell  ? 

A.  No,  sir  ;  he  was  not  holding  it  di- 
rectly in  front. 

Q.  Take  a  piece  of  paper,  and  show  the 
court  how  the  parties  were  standing,  and 
how  Mr.  Spencer  was  holding  it. 

A.  He  was  standing  this  way — (showing 
the  court). 

Q.  How  then  did  you  see  the  back  of 
the  paper  ? 

A.  Part  of  it  was  turned  over  this  way. 

Q.  Did  you  show  that  it  was  doubled  at 
first  ?  and  why  did  you  not  ? 

A.  Because  I  understood  you  to  ask 
to  show  you  their  position ;  I  did  not  un- 


NAVAL  COURT  MARTIAL. 


81 


derstand  you  to  ask  if  the  paper  was  doub- 
led up. 

Q.  When  you  say  you  did  not  understand 
me  in  asking  you  as  to  the  position  of  the 
paper,  was  not  the  question  put  to  you  as  to 
how  Mr.  Spencer  was  holding  it  ? 

A.  No,  sir,  I  did  not  understand  it  so  ;  I 
understood  you  to  ask  me  how  he  stood 
with  it  in  his  hand. 

Q.  Look  at  that  paper,  and  see  if  the  part 
having  the  geometrical  figures  on  it  were 
doubled  over,  whether  it  would  not  have 
been  in  Mr.  Spencer's  hand  upside  down 
where  the  writing  was  ? 

A.  I  could  not  say  it  would  have  been 
upside  down ;  I  saw  geometrical  figures. 

Q.  Is  not  the  lower  half  of  the  paper 
without  geometrical  figures  on  it  ? 

A.  No,  sir  ;  not  half — about  a  quarter. 

Q.  If  as  much  as  half  had  been  doubled 
over,  could  any  of  the  writing  be  seen  ? 

A.  No,  sir. 

Q.  How  much  of  the  paper  was  doubled 
over  ? 

A.  I  can't  say  how  much — there  did  not 
appear  to  be  much. 

Q.  If  there  was  not  much  doubled  over, 
and  there  are  no  geometrical  figures  on  a 
quarter  of  the  lower  part,  how  did  you  see 
the  geometrical  figures  ? 

A.  I  saw  it,  sir ;  I  can  not  tell  how  I 
saw  it ;  I  saw  it. 

BY  CAPTAIN  SHUBRICK. 

Q.  When  you  said  the  paper  was  doubled 
down,  did  you  mean  to  say  that  the  two 
parts  were  doubled  down  together  ? 

A.  No,  sir. 

BY  THE  JUDGE  ADVOCATE. 

Q.  When  did  you  first  tell  that  you  had 
seen  Mr.  Spencer  and  Cromwell  so  en- 
gaged ? 

A.  Aboard  the  Somers,  after  we  came  in. 

Q.  Whom  did  you  first  tell  ? 

A.  Lieut.  Gansevoort. 

Q.  Why  did  you  tell  him  ? 

A.  He  was  inquiring  round  the  brig,  if 
anybody  knew  anything  about  it ;  I  wrote  it 
off  and  sent  it  in. 

Q.  Were  not  inquiries  made  aboard  of  the 
brig  before  the  execution,  if  any  of  the  crew 
knew  anything  relating  to  the  mutiny  ? 

A.  Some  were  called  in  at  the  council 
of  officers — that  is  all  I  know  of. 
11 


Q.  Did  you  not  hear,  before  the  execu- 
tion, that  a  paper  with  strange  characters 
had  been  found  in  Mr.  Spencer's  locker  ? 

A.  I  heard  some  of  the  boys  mentioning 
it  about  the  decks. 

Q.  Why  did  you  not  tell  any  one  before 
the  execution,  or  before  your  arrival,  what 
you  say  you  saw  between  Cromwell  and 
Mr.  Spencer  ? 

A.  I  was  not  asked  anything  about  it. 

Q.  Do  I  understand  you  then  to  say  that 
you  never  mentioned  having  seen  this  paper 
to  any  of  your  messmates,  or  people  at  the 
gun  with  you,  or  to  any  of  the  crew,  before 
your  arrival  in  New  York  harbor  ? 

A.  No,  sir  ;  I  have  mentioned  it  to  Clark, 
one  of  the  apprentices. 

Q.  When  did  you  mention  it  to  Clark  ? 

A.  After  the  execution. 

Q.  Did  you  not  first  say  you  never  men- 
tioned it  to  any  one,  how  is  it  you  recollect 
having  told  it  to  Clark  ? 

A.  I  don't  know  that  I  said  I  never  men- 
tioned it  to  any  one  ;  I  said  I  did  not  recol- 
lect mentioning  it  to  any  one  ;  I  there  rec- 
ollect mentioning  it  to  Clark. 

Q.  Has  not  Clark  run  off? 

A.  Yes,  sir. 

Q.  Were  you  not  questioned  particularly 
as  to  that  paper,  and  your  knowledge  about 
it,  before  the  court  of  inquiry  ? 

A.  Yes,  sir. 

Q.  Did  you  tell  the  court  of  inquiry,  that 
you  had  mentioned  to  Clark  having  seen 
that  paper  ? 

A.  No,  sir  ;  they  did  not  ask  me. 

Q.  Had  the  court  of  inquiry  commenced 
before  you  told  any  one  here  about  your 
having  seen  some  paper,  being  shown  by 
Mr.  Spencer  to  Cromwell  ? 

A.  No,  sir. 

Q.  Did  you  mention  to  Clark,  after  the 
arrival  here,  that  you  were  going  to  tell 
about  it  ? 

A.  Not  that  I  remember. 

Q.  Did  you  not  know  that  Clark  was  ex- 
amined before  the  court  of  inquiry,  and  did 
you  not  ask  whether  he  had  told  of  your 
having  mentioned  to  him  what  you  saw  ? 

A.  No,  sir. 

Q.  As  you  say  that  you  are  not  particu- 
larly intimate  with  any  one,  how  is  it  that 
you  only  told  Clark  ? 

A.  I  don't  know  how  it  come ;  I  recol- 
lect that  I  told  him  on  the  spar-deck;  I 
don't  recollect  how  it  come. 


82 


PROCEEDINGS   OF  THE 


Q.  What  brought  about  the  conversation 
between  you  and  Clark? 

A.  I  don't  know. 

Q.  Look  at  the  paper,  and  say  if  that  is 
the  one  you  saw  in  Mr.  Spencer's  hand  ? 

A.  I  would  not  swear  to  the  paper,  I  did 
not  mark  it. 

Q.  Did  you  not  say  before  the  court  of 
inquiry,  that  you  just  went  past,  or  went  aft 
on  the  birth-deck,  at  the  time  Mr.  Spencer 
had  a  paper  showing  to  Cromwell  ? 

A.  I  said  I  was  going  past ;  I  say  so  now. 

Q.  Did  you  tell  the  court  of  inquiry  that 
the  paper  was  held  partly  doubled  by  Mr. 
Spencer  ? 

A.  No,  sir ;  I  was  not  asked. 

Q.  Before  you  testified  before  the  court 
of  inquiry,  did  not  several  gentlemen  ques- 
tion you  particularly  as  to  everything  about 
the  paper  you  saw,  and  what  you  saw 
of  it? 

A.  No,  sir ;  only  one. 

Q.  Who  was  that  gentleman,  and  where 
were  you  examined  by  him  ? 

A.  At  the  Commodore  Perry's  ;  the  gen- 
tleman, 1  believe,  was  Mr.  Duer. 

Q.  How  long  had  you  been  in,  before 
you  mentioned  this  matter  to  Lieut.  Ganse- 
voort  ? 

A.  I  don't  know ;  I  can't  say  how  long 
we  had  been  in — it  was  not  long. 

Q.  You  say  you  only  saw  it,  as  you  were 
passing  by,  can  you  undertake  to  say  what 
sort  of  writing  was  on  the  paper  ? 

A.  I  could  not  call  it  writing ;  it  was 
crosses,  or  something  like  it. 

Q.  Do  you  know  of  Mr.  Spencer  having 
ever  shown  Cromwell  his  day's  work  ? 

A.  No,  sir. 

Q.  Were  you  near  enough  to  distinguish 
•whether,  or  not,  the  paper  had  arithmetical 
figures  on  it  ? 

A.  I  could  not  tell  whether  it  had,  or 
not ;  I  was  near  enough  ;  I  was  not  paying 
much  attention ;  I  did  not  know  whether 
Mr.  Spencer  was  writing  or  not ;  there  was 
something  like  crosses  on  it. 

Q.  Were  people  passing  about  the  ship, 
at  the  time  you  saw  Mr.  Spencer  and  Crom- 
well? 

A.  Yes,  sir. 

Q.  Would  not  Mr.  Spencer  and  Crom- 
well have  been  seen  by  any  one  corning 
down  the  hatch  ? 

A.  They  might  have  been  seen  by  any 
one. 


Q.  Can  you  tell  how  long  they  had  been 
in  conversation  when  you  passed  by  ? 

A.  No,  sir. 

Q.  Were  not  people  constantly  passing 
up  and  down  the  fore-hatch  of  the  Somers, 
when  at  sea  ? 

A.  Yes,  sir. 

Q.  How  near  would  any  one  coming 
down  the  hatch,  have  been  to  Mr.  Spencer 
and  Cromwell,  at  the  time  of  this  conversa- 
tion ? 

A.  About  fifteen  or  eighteen  feet  from 
the  fore-hatch. 

Q.  Were  they  standing  near  the  scuttle? 

A.  They  were  not  standing — theyt  were 
sitting  almost  under  the  scuttle. 

Q.  Were  Mr.  Spencer  and  Cromwell  sit- 
ting side  by  side  ? 

A.  They  were  not  very  close,  but  near 
enough  that  their  heads  could  touch ;  they 
were  sitting  on  a  box  which  came  from  the 
store-room,  I  believe. 

Q.  Was  it  Cromwell's  business  to  go  in 
and  out  of  the  store-room,  for  the  things 
that  were  wanted? 

A.  Yes,  sir. 

Q.  Had  that  box  been,  during  the  after- 
noon, taken  out  of  the  store-room  ? 

A.  I  can't  say. 

Q.  Was  the  store-room  door  open  ? 

A.  Yes,  sir. 

Q.  Who  was  master's  mate  aboard  the 
Somers  ? 

A.  There  was  none. 

Q.  Who  did  that  officer's  duty  ? 

A.  I  believe  the  master-at-arms. 

BY    CAPTAIN    GWINN. 

Q.  Was  there  a  ladder  at  the  scuttle  to 
pass  up  and  down,  as  at  the  fore-hatch,  or 
was  the  scuttle  merely  to  give  light  and 
air  ? 

A.  There  was  a  ladder. 

The  examination  of  Wm.  Neville  was 
here  suspended ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Wednesday),  Feb.  22,  at  10  o'clock, 
A.  M. 


NAVY  YARD, 
Brooklyn,  Feb.  22,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 


NAVAL  COURT  MARTIAL. 


83 


Captain  Read,          Captain  Page, 
"       Bolton,  "        Gwinn, 

"       Turner,  "        Wymari, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "        Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Capt.  Smith  sent  the  following  certifi- 
cate, which  was  read  by  the  judge  advo- 
cate. 

"  U.  S.  NAVY  YARD,      ) 
"  Brooklyn,  Feb.  22,  1843.  $ 
"I   hereby  certify  that  Captain  Joseph 
Smith  is  prevented  by  indisposition  from 
attending  the  Naval  Court  Martial  this  day. 
"  Respectfully, 

"JOHN  HASLITT,  Surgeon. 
"  To  the  President  of  the  Naval  Court  Mar- 
tial, New  York  Navy  Yard." 

Wm.  Neville  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  While   Clark  was  here,   and  before 

I   your  examination  before  the  court  of  inquiry, 

did  you  mention  to  Lieut.  Gansevoort,  or 

any  officer  or  gentleman,  that  you  had  men- 

j  tioned  to  Clark,  having  seen  Mr.  Spencer 

and  Cromwell  with  a  paper  between  them, 

as  you  described  ? 

A.  No,  sir. 

Q.  Did  you  mention  to  any  such  person 
before  Clark  absconded  ? 

A.  I  did  not  mention  it  to  any  one  that  I 
know  of. 

Q.  Did  you  not  tell  the  court  of  inquiry, 
that  the  paper  looked  as  "if  it  had  been 
doubled?" 

A.  I  told  the  court  of  inquiry,  it  looked 
as  if  it  had  been  doubled  into  a  book — it 
looked  as  if  it  had  been  a  leaf  torn  out  of  a 
book. 

Q.  Did  you  not  tell  the  court  of  inquiry, 
that  the  paper  looked  as  if  it  had  been  torn 
from  a  book  ? 

A.  I  do  not  know  whether  I  told  them  it 
had  been  torn  from  a  book ;  I  said  it  looked 
yellower  than  writing  paper,  and  as  though 
it  might  have  come  out  of  a  book. 

Q.  Did  not  the  boys  of  the  ship  know 
and  talk  of  the  character  of  the  paper  found 
in  Mr.  Spencer's  locker,  before  the  arrival 
of  the  Somers  here  ? 


A.  I  do  not  recollect ;  I  do  not  know. 

Q.  Do  you  mean  that  you  have  not  talked 
with,  and  heard  the  crew  talk  about  that 
paper,  before  the  arrival  of  the  Somers  ? 

A.  I  have  heard  them  talk  of  the  paper 
(but  not  of  the  characters)  being  found ;  but 
what  paper  they  did  not  say. 

Q.  Did  you  not  hear  that  Waltham  was 
present  in  the  steerage,  when  Mr.  Spencer's 
paper  was  found,  and  translated  by  Mr. 
Rogers  ? 

A.  No,  sir. 

Q.  When  Mr.  Spencer  asked  you  about 
sailing  with  him,  did  he  not  speak  of  buy- 
ing a  vessel ? 

A.  No,  sir. 

Q.  Did  he  not  mention  his  intention  to 
get  one  when  he  got  home,  and  after  this 
cruise  was  over  ? 

A.  No,  sir ;  he  said  he  should  soon  have 
a  vessel  of  his  own  ;  he  did  not  say  where 
he  was  to  get  her. 

Q.  Was  anybody  by,  when  you  were 
conversing  with  Mr.  Spencer,  about  his  sail- 


ing 


with 


you 


A.  I  don't  know. 

BY    COMMANDER    MACKENZIE. 

Q.  Did  you  ever  see  any  other  midship- 
man, than  Mr.  Spencer,  forward  on  the 
berth-deck,  in  close  and  private  conversa- 
tion with  Cromwell,  or  any  other  petty 
officer  ? 

A.  I  don't  know  that  I  have  ;  I  have  seen 
midshipmen  forward,  but  I  did  not  notice 
them  in  conversation. 

BY    THE    JUDGE    ADVOCATE. 

Q.  When  did  you  first  mention  that  Mr. 
Spencer  had  asked  you,  if  you  would  sail 
with  him  ? 

A.  To  Lieutenant  Gansevoort,  after  our 
arrival. 

Q.  Did  you  tell  Mr.  Spencer  you  would 
sail  with  him  1 

A.  No,  sir ;  I  told  him  I  did  not  know. 

The  examination  of  Wm.  Neville  was 
here  closed ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Edward  English  being  called,  and  duly 
sworn  by  the  president  of  the  court,  testified 
as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name — your  age  ?  Were 
you  on  board  of  the  Somers  in  her  last  voy- 
age ? 


84 


PROCEEDINGS  OF  THE 


A.  Edward  English  ;  my  age,  18  next 
March  ;  I  was  on  board  of  the  Somers  in 
her  last  cruise  as  second  class  apprentice. 

Q.  Did  you  ever  see  Mr.  Spencer,  on 
board  the  Somers,  show  a  paper  to  Crom- 
well ?  If  so,  state  all  that  passed,  accord- 
ing to  your  recollection. 

A.  I  saw  him  show  a  paper  once  ;  he  sat 
on  the  fore  squttle  ;  Mr.  Spencer  had  a  paper 
and  pencil  in  his  hand,  as  though  he  was 
writing  down  something  that  Cromwell  had 
just  said  to  him  ;  Mr.  Spencer  said,  "  Yes, 
yes  ;"  that  is  all  I  saw  at  that  time. 

Q.  What  sort  of  paper  was  Mr.  Spencer 
writing  on ? 

A.  It  was  a  kind  of  oldish  ;  yellow  was 
the  color ;  I  should  know  the  paper ;  I 
should  know  the  color  ;  I  could  not  say  for 
the  size. 

Q.  Was  it  like  either  of  the  papers  now 
shown  you  ? 

A.  It  appears  to  me  the  other  was  yel- 
lower than  this  ;  I  could  not  say  as  to  size  ; 
it  appears  to  me  the  other  was  of  a  yellower 
color ;  I  could  not  say  certain. 

Q.  Are  those  the  papers  shown  you  be- 
fore the  court  of  inquiry  ? 

A.  I  think  the  papers  shown  me  at  the 
court  of  inquiry  looked  yellower  ;  1  could 
not  say  for  certain  ;  they  might  be  the  same 
ones. 

Q..  Did  not  the  papers  shown  you  before 
the  court  of  inquiry  resemble  that  which  you 
saw  Mr.  Spencer  and  Cromwell  looking  at  ? 

A.  Yes,  sir,  they  did. 

Q.  Did  any  one  of  the  boys  sec  Mr. 
Spencer  and  Cromwell  looking  over  this 
paper  together  at  the  time  you  saw  them  , 
and  if  so,  what  passed  ? 

A.  Yes,  sir ;  the  boy's  name  was  Wil- 
liam Inglis ;  he  stepped  up  toward  Mr. 
Spencer ;  Mr.  Spencer  looked  at  him  and 
said,  "  Damn  you,  if  you  don't  go  away  I 
will  take  you  to  the  mast !" 

Q.  What  was  the  manner  of  Mr.  Spencer 
and  Cromwell  during  this  conversation  ? 

A.  He  appeared  to  be  in  earnest  in  what 
he  was  saying  ;  they  looked  very  sober  to 
one  another. 

Q.  How  long  was  this  consultation  be- 
fore the  arrest  of  Mr.  Spencer  ? 

A.  I  could  not  say;  it  was  on  our  way 
from  Liberia  to  New  York,  before  we  got 
into  St.  Thomas. 

Q.  Did  you  ever  hear  Mr.  Spencer  and 
Cromwell  have  any  conversation  about  turn- 


ing the  Somers  into  a  pirate?  If  so,  state 
what  you  heard. 

A.  I  heard  him  one  day  on  the  forward 
bitts  ;  Cromwell  I  believe  said,  "  This  would 
make  a  very  fine  piratical  vessel ;"  that  is 
all  I  heard. 

Q.  Can  you  not  distinctly  remember  that 
Cromwell  made  the  remark  about  the  pirat- 
ical vessel ? 

A.  I  can  remember  that  he  (Cromwell) 
said,  "  This  would  make  a  very  fine  piratical 
vessel ;"  that  is  all  I  heard. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  time  of  day  was  it  you  saw  Mr. 
Spencer  and  Cromwell  with  a  paper  ? 

A.  It  was  in  the  afternoon,  I  believe ;  I 
can't  state  positively  the  time. 

Q.  How  long  before  evening  quarters  ? 

A.  I  could  not  say  exactly  how  long ;  it 
was  in  the  afternoon  ;  the  middle  of  the 
afternoon  ;  I  could  not  say  positively  how 
long. 

Q.  How  long  did  you  notice  them  ? 

A.  I  went  below  ;  I  did  not  stay  on  deck 
many  minutes  ;  I  had  been  to  the  head,  and 
passed  by  them. 

Q.  Did  you  stop  to  talk  to  Inglis  ? 

A.  No,  sir. 

Q.  Were  you  at  the  time  on  the  sick 
list? 

A.  I  could  not  say  whether  I  was  or 
not. 

Q .  Did  you  not  have  the  papers  that  have 
been  now  shown  you,  before  you  at  the 
court  of  inquiry,  and  did  you  not  attentively 
examine  them  ? 

A.  I  did  not  take  them  up  in  my  hand  ; 
I  looked  at  them. 

Q.  Did  you  not  look  at  one  of  them  be- 
fore the  court  of  inquiry,  for  the  purpose  of 
swearing  as  to  its  resemblance  to  that  you 
saw  in  Mr.  Spencer's  hand  ? 

A.  Yes,  sir,  I  did. 

Q.  Do  you  now  say  that  the  one  before 
the  court  of  inquiry  was  yellower  than  the 
one  now  shown  you,  though  it  may  be  the 
same  ? 

A.  Yes,  sir,  I  think  it  was. 

Q.  WThich  is  most  like  the  one  you  saw 
in  Mr.  Spencer's  hand — the  one  now  shown 
you,  or  the  one  you  saw  before  the  court  of 
inquiry  ? 

A.  Well,  sir,  I  think  the  one  that  was 
before  the  court  of  inquiry. 

Q.  If  you  were  certain  that  the  one  you 


NAVAL  COURT  MARTIAL. 


8f 


now  see  is  the  same  one  you  saw  before  the 
court  of  inquiry,  would  you  not  conclude  you 
did  not  take  particular  notice  of  the  paper  in 
Mr.  Spencer's  hand  ? 

A.  Yes,  sir  ;  I  did  not  take  particular 
notice  of  the  paper  in  Mr.  Spencer's  hand  ; 
I  did  not  mistrust  anything. 

Q.  When  did  you  first  tell  that  you  had 
seen  Mr.  Spencer  so  engaged  with  Crom- 
well? 

A.  At  the  court  of  inquiry. 

Q.  I  do  not  mean  when  you  were  first 
sworn,  but  when  did  you  first  tell  any  one 
that  you  had  seen  Mr.  Spencer  and  Crom- 
well so  engaged  ? 

A.  I  have  mentioned  it  to  the  boys  aboard 
the  brig ;  I  could  not  say  who,  but  before 
the  court  of  inquiry,  and  after  our  arrival. 

Q.  Was  there  not  much  talk  aboard  the 
brig,  after  the  arrest  and  before  your  arrival, 
about  the  paper  found  in  Mr.  Spencer's 
locker  ? 

A.  I  had  heard  some  talk  about  some 
papers  being  found  ;  I  heard  the  commander 
one  Sunday  after  the  execution  read  them 
over  to  us. 

Q.  Did  Commander  Mackenzie  hold  the 
papers  in  his  hand  ? 

A.  They  lay  on  the  slide  of  the  trunk, 
and  I  believe  Mr.  Gansevoort  handed  them 
over  to  him. 

Q.  How  near  were  you  to  the  commander 
when  he  was  reading  those  papers  ? 

A.  I  was  about  fifteen  feet  from  him. 

Q.  Did  you  see  the  figures  then  on  the 
back  of  one  of  the  papers  ? 

A.  No,  sir,  I  did  not ;  I  did  not  take 
notice. 

Q.  Did  you  hear  the  commander  then 
tell  the  crew  that  the  paper  was  a  leaf  of  a 
book,  or  anything  of  that  kind  ? 

A.  No,  sir,  not  to  my  memory. 

Q.  Was  the  commander  then  reading  the 
names  of  those  on  Mr.  Spencer's  list,  and 
was  he  telling  you  who  Mr.  Spencer's  ac- 
complices were  ? 

A.  No,  sir;  it  was  not  those  papers  he 
read  to  us — it  was  others. 

Q.  Have  you  not  talked  with  the  boys, 
before  the  arrival,  about  the  names  on  Mr. 
Spencer's  list  ? 

A.  No,  sir,  not  to  my  memory. 

Q.  Did  you  not  hear  on  ship-board,  be- 
fore your  arrival,  that  M'Kee,  M'Kinley, 
Wilson,  Green,  Waltham,  and  others,  were 
down  on  Mr.  Spencer's  paper  ? 


A.  Yes,  sir  ;  I  heard  some  talk  of  it  after 
they  were  arrested ;  I  heard  they  were  im- 
plicated in  the  mutiny ;  I  don't  know  whether 
it  was  true. 

Q.  Was  it  not  common  ship-talk,  that 
those  names  were  down  on  Mr.  Spencer's 
paper  ? 

A.  I  heard  it  mentioned  pretty  often. 

Q.  Which  of  the  officers  did  you  first 
tell  here  of  having  seen  Mr.  Spencer  and 
Cromwell  engaged  with  a  paper  ? 

A.  I  told  Mr.  Gansevoort  when  he 
called  me  in  the  ward-room. 

Q.  How  came  you  to  mention  the  cir- 
cumstance about  Cromwell  and  Spencer 
after  your  arrival,  not  having  said  anything 
about  it  before  ? 

A.  I  never  said  anything  about  it  until  I 
was  asked  to — Mr.  Gansevoort  called  me  in 
the  ward-room. 

Q.  Can  persons  on  the  forescuttle  be 
readily  noticed  and  observed  by  persons 
going  about  the  ship  in  the  forward  part  on 
duty? 

A.  Yes,  sir,  they  can  ;  I  don't  know  that 
they  can  be  observed  from  the  quarter-deck 
very  well,  on  account  of  the  booms. 

Q.  Have  you  not  frequently  seen  the 
young  officers  talking  to  the  seamen  on 
such  places  of  the  ship  ? 

A.  I  have  seen  Mr.  Spencer ;  I  have 
seen  Mr.  Delonde  and  Mr.  Tillotson  talking 
to  Browning  about  affairs  at  home  ;  I  never 
saw  those  talking  to  any  of  the  boys,  only 
the  petty  officers,  and  then  when  they  came 
up  from  dinner ;  I  never  saw  any  of  them 
talking  as  much  with  the  crew  as  Mr.  Spen- 
cer ;  it  is  a  very  usual  thing  for  the  officers 
to  talk  with  the  crew  after  dinner  about  af- 
fairs at  home. 

Q.  Do  you  know  why  you  were  called 
into  the  ward-room  by  Lieutenant  Ganse-? 
voort,  and  asked  what  you  had  seen  of  Mr. 
Spencer  and  Cromwell  ? 

A.  No,  sir,  I  do  not. 

Q.  What  did  Mr.  Gansevoort  say  to  you 
when  he  called  you  into  the  ward-room  ? 

A.  He  asked  me  if  I  knew  Mr.  Spencer 
had  conversation  with  the  crew  ;  I  told  him 
I  had. 

Q.  Who  was  present  when  Lieutenant 
Gansevoort  was  talking  with  you  there  ? 

A.  There  were  several  officers  in  the 
ward-room. 

Q.  Did  he  tell  you  it  would  be  a  good 
thing  for  you  to  tell  everything  you  saw  ? 


86 


PROCEEDINGS  OF  THE 


A.  He  told  me  when  I  got  into  court  to 
tell  everything  I  saw  and  the  truth. 

Q.  Did  he  tell  you  this  after  you  had  told 
him  what  you  saw,  or  before  ? 

A.  He  told  me  when  I  first  commenced, 
"  Now,  English,  tell  all  you  know  about  it, 
it  will  be  the  best  thing  for  you  ;  tell  the 
truth  and  nothing  but  the  truth." 

Q.  This  was  the  first  time,  do  you  say, 
you  had  told  what  you  saw  ? 

A.  Yes,  sir. 

BY    CAPTAIN    PAGE. 

Q.  Was  the  paper  shown  you  at  the 
court  of  inquiry  wafered  one  to  another  as 
this  is  now  ? 

A.  No,  sir,  they  were  not  wafered,  I  be- 
lieve not. 

BY   THE  JUDGE  ADVOCATE. 

Q.  Have  you  not  now  seen  the  paper  on 
both  sides  ? 

A.  Yes,  sir,  I  have. 

BY    CAPTAIN    SHUBRICK. 

Q.  Do  you  or  do  you  not  know  that  this 
is  the  paper  shown  you  when  before  the 
court  of  inquiry,  and  which  you  saw  in  the 
hands  of  Mr.  Spencer  ? 

A.  It  resembles  the  paper  I  saw  in  his 
hand,  I  can't  say  positively,  though  it  is  not 
so  yellow  as  the  one  before  the  court  of 
inquiry. 

BY   COMMANDER  MACKENZIE. 

Q.  Have  you  ever  heard  any  mutinous 
remark  of  Cromwell  when  the  commander 
has  given  an  order  1 

A.  I  have  heard  Cromwell,  when  the 
commander  sent  some  order  forward  to  him, 
say,  "  Damn  it,  there's  no  use  in  doing  it ; 
he  only  wants  to  make  more  work  for  the 
crew." 

Q.  Shortly  before  and  after  the  arrest  of 
Mr.  Spencer,  did  you  hear  any  mutinous 
remarks  from  the  crew  when  an  order  has 
been  given  for  the  performance  of  ship's 
•  duty? 

A.  If  there  has  been  any  work  going  on, 
'  I  have  seen  them  act.  kind  of  surly,  not  at- 
tend to  what  was  told  them. 

Q.  Have  you  ever  seen  Mr.  Spencer  and 
Cromwell  in  private  conversation  on  other 
occasions  than  the  one  when  they  were 
-consulting  over  the  paper  ? 

A.  No,  sir,  I  believe  not ;  I  have  seen 
-them  together,   never  overheard  them  ;    I 
don't  know  as  they  were  saying  anything. 


Q.  What  was  Mr.  Spencer's  reply  when 
Cromwell  made  the  remark  that  the  Somers 
would  make  a  fine  piratical  vessel  ? 

A.  "  Yes,  yes." 

BY  CAPTAIN  BOLTON. 

Q.  Would  not  the  reflection  of  light  upon 
the  papers  when  exhibited  in  the  cabin  of 
the  North  Carolina  and  this  room  be  dif- 
ferent ? 

A.  Well,  sir,  I  don't  know  ;  it  is  darker 
there  than  here  ;  I  don't  know  for  certain 
as  it  would  make  any  difference. 

Q.  Was  there  anything  but  the  sky  over 
Mr.  Spencer  and  Cromwell  when  talking 
with  the  paper  ? 

A.  There  were  sails  set ;  the  shade  of 
the  foresail  might  have  shaded  over  them. 

It  is  admitted  by  the  judge  advocate  that 
the  papers  shown  the  witness  English,  in 
this  examination  are  the  same  as  those 
shown  on  the  examination  before  the  court 
of  inquiry. 

The  testimony  of  Edward  English  here 
closed,  his  evidence  was  read  to  him 
and  corrected  by  him. 

Edward  Fowler,  being  called  and  duly 
sworn  by  the  president  of  the  court,  testi- 
fied as  follows : — 

EXAMINED  BY  COMMANDER    MACKENZIE. 

Q.  What  is  your  age  ?  your  name  ?  were 
you  on  board  the  Somers  during  her  last 
cruise,  and  in  what  capacity  ? 

A.  My  name  is  Edward  Fowler,  my  age 
fifteen ;  I  was  third-class  apprentice  on 
board  the  Somers  in  her  last  cruise. 

Q.  Did  you  observe  Small  and  Cromwell 
in  private  conversation  on  board  the  Som- 
ers -?  if  so,  state  what  occurred? 

A.  Yes,  sir ;  one  evening  Cromwell  and 
Small  were  sitting  on  the  jacob's-ladder ; 
Cromwell  asked  Small  if  he  was  ever  in 
the  Isle  of  Pines  ;  Small  told  him  "  No ;" 
Cromwell  said  how  he  was  there  once  in  a 
man-of-war,  and  that  there  were  a  good 
many  man-of-war's-men  and  pirates  there ; 
Mr.  Spencer  was  not  present  at  this  con- 
versation. 

Q.  What  farther  passed  on  the  occasion  ? 

A.  Small  said  he  suspected  it  was  a  very 
nice  place,  and  Cromwell  answered  him 
"  Yes  ;"  Cromwell  said  to  Small,  "  Never 
mind,  we  shall  soon  see  the  time  when  we 
will  be  there  again." 

Q.  Where  was  the  Somers  when  this 


NAVAL  COURT  MARTIAL. 


87 


took  place  ?  at  what  time  of  day  did  this 
conversation  occur  ? 

A.  I  think  it  was  coming  from  Africa  to 
St.  Thomas ;  it  was  betwixt  seven  and 
eight  o'clock  of  the  evening. 

Q.  Have  you  ever  observed  Mr.  Spencer 
and  Cromwell  in  private  conversation  ?  if 
so,  how  often  ? 

A.  I  have  seen  them  talking  together 
three  or  four  hours  at  a  time,  and  sometimes 
half  a  day,  and  in  the  evening  all  Crom- 
well's watch. 

Q.  At  what  period  of  the  cruise  did  the 
conversations  of  Mr.  Spencer  and  Crom- 
well chiefly  take  place  ? 

A.  She  was  going  from  Madeira  to  the 
coast  of  Africa  after  we  left  Madeira. 

Q.  Did  these  conversations  continue 
down  to  the  time  of  Mr.  Spencer's  arrest  ? 

^4..  Yes,  sir. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Did  the  commander,  in  his  speech  to 
the  crew  after  the  arrest,  mention  that  it 
was  Mr.  Spencer's  plan  to  go  to  the  Isle  of 
Pines  ? 

A.  Yes,  sir. 

Q.  How  soon  was  it  after  the  arrest  you 
heard  this  from  the  commander  ? 

A.  About  three  or  four  days,  I  should 
think. 

Q.  When  did  you  first  tell  of  this  con- 
tversation  between  Cromwell  and  Small  ? 

A.  At  the  commodore's  house  since  our 
return. 

Q.  How  did  you  come  to  be  taken  to  the 
commodore's  house  ? 

A.  I  was  asked  before  I  went  to  the 
commodore's  house  about  this  case. 

Q.  Who  asked  you  ?  when,  and  where  ? 

A.  Mr.  Gansevoort,  aboard  the  Somers, 
a  little  while  after  we  arrived  in ;  I  can't 
tell  exactly  how  long. 

Q.  Who  was  wit.h  Mr.  Gansevoort,  and 
in  what  part  of  the  Somers  was  it  ? 

A.  In  the  ward-room ;  Master  Perry, 
Mr.  Wales,  Mr.  Heiskill,  and  three  or  four 
other  officers  (I  don't  recollect  their  names), 
were  with  him. 

Q.  How  came  you  to  go  into  the  ward- 
room ? 

A.  The  master-at-arms  was  asking  me 
if  I  knew  anything  about  this  case. 

Q.  What  did  the  master-at-arms  say  to 
you  ? 

A.  He  came  to  me  and  asked  me  if  I 


knew  anything  about  it ;  I  told  him  "  Yes, 
I  knew  a  little  something  about  it." 

Q.  Who  were  by  when  you  were  talking 
to  the  master-at-arms  ? 

A.  Collins,  the  boatswain's  mate. 

Q.  Did  the  master-at-arms  tell  you  it 
would  be  a  good  thing  for  you  to  tell  what 
you  knew  ? 

A.  Yes,  sir. 

Q.  Did  he  tell  you  why  it  would  be  a 
good  thing  for  you  to  tell  ? 

A.  No,  sir. 

Q.  What  did  Lieutenant  Gansevoort  say 
to  you  when  you  went  into  the  ward-room 
to  tell  ? 

A.  He  told  me  to  go  on  and  tell  what  I 
knowed  about  this  case. 

Q.  Did  he  not  also  tell  you  it  would  be 
a  good  thing  for  you  to  tell  what  you  knew  ? 

A.  No,  sir. 

BY  CAPTAIN  OGDEN. 

Q.  Did  the  master-at-arms,  or  any  other 
person,  offer  you  any  inducement  to  tell 
anything  that  was  not  the  truth  ? 

A  No,  sir. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  any  of  the  other  officers,  besides 
Mr.  Gansevoort,  tell  you  it  would  be  a  good 
thing  for  you  to  tell  ? 

A.  No,  sir. 

Q.  Who  are  you  most  intimate  with  on 
board  the  Somers  ? 

A.  Nobody  in  particular. 

Q.   Who  is  at  the  gun  with  you  ? 

A.  I  was  not  stationed  at  a  gun. 

Q.  Who  was  at  quarters  with  you? 

A.  Some  boys  I  did  know,  and  some  I 
did  not — a  boy  by  the  name  of  Ranshurst, 
Clark,  Houghland,  Finnessey,  H.  King ; 
that  is  all  I  know. 

Q.  Who  messed  with  you? 

A.  A  man  by  the  name  of  Collins,  Stew- 
art, Dickenson,  Henry  Miller,  Robert  Alli- 
son, a  man  by  the  name  of  King,  a  gun- 
ner's mate,  and  Thomas  Brown. 

Q.  Did  you  tell  any  of  those  persons 
in  your  mess,  or  at  quarters  with  you,  of 
this  conversation  between  Small  and  Crom- 
well before  your  arrival  here  ? 

A.  No,  sir. 

Q.  Did  you  tell  any  one  aboard  the  Som- 
ers of  this  conversation  between  Cromwell 
and  Small  before  your  arrival  here  ? 

A.  No,  sir. 

Q.  Was  there  not  much  talk  aboard  the 


88 


PROCEEDINGS  OF  THE 


brig  about  Mr.  Spencer's  plan  of  pirating 
after  his  arrest  ? 

A.  Yes,  sir;  there  was  a  good  deal. 

Q.  Did  you  not  hear  much  talking  about 
this  Isle  of  Pines  after  the  arrest  ? 

A.  No,  sir ;  I  did  not  hear  a  great  deal. 

Q.  Did  you  not  say  that  the  commander 
told  the  crew  it  was  Mr.  Spencer's  plan  to 
go  to  the  Isle  of  Pines  ?  After  that,  was 
there  not  much  talk  as  to  where  it  was,  and 
so  forth  ? 

A.  No,  sir  ;  there  was  not  a  great  deal 
of  talk. 

Q.  Did  you  ask  where  the  Isle  of  Pines 
was,  or  anything  about  it  ? 

A.  No,  sir  ;  I  never  asked  anything 
about  it. 

Q.  Did  you  know  anything  about  the  Isle 
of  Pines  before  the  arrest,  or  when  the 
commander  spoke  of  it  ? 

A.  No,  sir. 

The  examination  of  Edward  Fowler  here 
closed ;  his  evidence  was  read  to  him,  and 
corrected  by  him. 

William  H.  King  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name — your  age  ?  were 
you  on  board  of  the  Somers  during  her  last 
cruise  ?  to  what  watch  did  you  belong  ? 

A.  My  name  is  W.  H.  King — my  age 
16  years  ;  I  was  on  board  of  the  Somers  in 
her  last  cruise  ;  I  belonged  to  the  starboard 
watch. 

Q.  Did  Cromwell  belong  to  the  starboard 
watch  ?  If  so,  what  was  the  conduct  of 
Cromwell  to  his  watch  during  the  first  part 
of  the  cruise  ? 

A.  Yes,  sir ;  the  first  part  of  the  cruise 
he  used  to  be  very  bad  to  small  boys — beat 
them  and  curse  them. 

Q.  Did  he  afterward  change  his  conduct  ? 
and  when  ? 

A.  He  changed  his  conduct  after  he  be- 
came intimate  with  Mr.  Spencer ;  after  he 
took  to  conversing  with  Mr.  Spencer,  I  no- 
ticed he  became  better  to  the  boys. 

Q.  With  whom  was  Cromwell  most  inti- 
mate ? 

A.  He  was  very  intimate  with  Mr.  Spen- 
cer and  the  larger  boys ;  there  were  Van 
Veltzor,  Warner,  Green,  Gedney,  and  God- 
frey. 

Q.  Have  you  ever  observed  Mr.  Spencer 


and  Cromwell  conversing  together  in  pri- 
vate ?  If  so,  state  how  often  and  whether 
in  the  day  or  night  time  ? 

A.  I  have  heard  them  converse  both  day 
and  night  on  the  forecastle  very  often. 

Q.  In  what  tone  was  their  conversation 
conducted  ? 

A.  In  a  very  low  tone. 

Q.  Did  you  ever  hear  any  of  this  low 
conversation  between  Mr.  Spencer  and 
Cromwell  ? 

A.  One  night  I  was  going  forward  to  the 
head  of  the  vessel,  and  I  heard  Cromwell 
tell  Mr.  Spencer,  that  "  he  would  like  to 
have  command  of  a  vessel,  and  go  round 
the  Isle  of  Pines ;  said  it  was  a  very  beau- 
tiful place."  Mr.  Spencer  asked  him  if 
there  was  plenty  of  fruit  there.  Cromwell 
said,  "  Yes."  That  is  all  I  heard  at  that 
time. 

Q.  Did  this  conversation  continue  long 
after  what  you  overheard  was  said  ? 

A.  Yes,  sir  ;  they  went  on  speaking  in  a 
low  tone  ;  as  he  saw  me,  he  stopped  ;  they 
continued  on  talking  about  two  hours. 

Q.  Did  you  ever  see  Mr.  Spencer  give 
liquor  to  Cromwell  and  others  ? 

A.  No,  sir  ;  I  have  heard  him  promise  it 
to  Cromwell  and  Small  both. 

Q.  Did  you  ever  hear  Cromwell  use  abu- 
sive expressions  concerning  Commandei 
Mackenzie  ?  [f  so,  state  what  you  heard. 

A.  I  heard  him  curse  the  jib  and  the  1< 
cings,  and  them  that  invented  it,  alluding 
to  the  commander. 

BY  THE  JUDGE  ADVOCATE. 

Q.  What  sort  of  fruit  was  it  Mr.  Spence 
asked  about  ?     Did  he  mention  pine-apples' 

A.   No,  sir  ;  no  particular  fruit. 

Q.  Did  you  ask  anybody  where  this  beai 
tiful  Isle  of  Pines  was  ? 

A.  No,  sir. 

Q.  Did  you  hear  the  commander,  aft( 
the  arrest,  tell  the  crew  that  it  was  Mr. 
Spencer's  plan  to  go  to  the  Isle  of  Pines  ? 

A.  Yes,  sir. 

Q.  When  did  you  first  tell  any  one  of 
what  you  say  you  heard  Cromwell  remark 
to  Mr.  Spencer? 

A.  1  told  it  to  Houghland  two  days  aftei 
the  execution ;  I  told  it  when  we  were  sit 
ting  down  by  the  foremast,  talking  aboi 
what  he  would  have  done,  had  he  took  th( 
vessel,  whether  he  would  have  sailed  ii 
her,  or  sold  her. 


NAVAL  COURT  MARTIAL. 


Q.  When  did  you  first  tell  the  comman- 
der, or  any  officer  of  the  Somers  ? 

A.  I  told  it  to  Mr.  Duer  at  the  commo- 
dore's house  for  the  first  time ;  I  told  it 
first  to  Lieutenant  Gansevoort  in  the  ward- 
room, before  I  had  been  to  the  commodore's 
house. 

Q.  Were  not  all  hands  aboard  ship  ex- 
pected and  asked  to  tell,  before  the  execu- 
tion, what,  they  knew  of  the  mutiny  ? 

A.  I  don't   remember   that   they   were ; 
they  called  a  few  boys  into  the  wardroom. 
Q.  Did  you  hear  Cromwell  in  the  gang- 
way protest  that  he  was  innocent,  when  he 
was  about  to  be  hung  ? 
A.  Yes,  sir. 

Q.  Why  then  did  you  not  afterward,  or 
at  the  time,  report  what  you  say  you  heard 
between  him  and  Mr.  Spencer  ? 

A.  I  do  not  know  what  the  reason  was. 
Q.  Did  you  not  hear  many  persons  of 
the  crew  speak  of  Cromwell's  having  de- 
clared himself  innocent  ? 
A.  Yes,  sir. 

Q.  Why  then  did  you  not  tell  any  of 
those  persons  but  Houghland  of  what  you 
say  you  heard  between  Cromwell  and  Mr. 
Spencer  1 

A.  I  did  not  think  at  the  time  it  would 
do  much  good. 

Q.  When  was  you  sent  for  into  the  ward- 
room by  Lieut.  Gansevoort  ? 

A.  Two  days  before  some  of  us  went  up 
to  the  commodore's. 

Q.  Who,  if  anybody,  had  been  speaking 
to  you  about  what  you  knew  before  you 
went  into  the  wardroom,  after  your  arrival, 
to  Lieut.  Gansevoort  ? 

A.  No  one  that  I  know  of. 
Q.  How  came  you  to  go  into  the  ward- 
room? 

A.  Mr.  Oliver  Perry  asked  me  if  I  knew 
anything  about  Cromwell.  I  told  him 
"  Yes  ;"  and  he  told  me  to  go  into  the 
wardroom. 

Q.  Give  the  conversation  that  passed  be- 
tween Mr.  Oliver  Perry  and  yourself. 

A.  He  was  officer  of  the  deck,  and  asked 
if  I  knew  anything  about  Mr.  Spencer  anc 
Cromwell ;  I  told  him  I  knew  something 
he  told  me  to  go  down  in  the  wardroom 
Mr.  Gansevoort  wished  to  see  me. 

Q.  Had  English  and  Fowler  then  been 
in  the  wardroom  ? 

A.  Fowler  was  in  there  at  the  time  ] 
was  ;  I  don't  know  whether  English  had. 
12 


Q.  When  did  you  first  know  that  English 
and  Fowler  knew  anything  about  Crom- 
well? 

A.  I  didn't  know  that  English  knew  any- 
hing  about  it.  I  knew  that  Fowler  did,  be- 
:ause  he  was  in  there  telling  Mr.  Ganse- 
voort before  I  went  in. 

Q.  Have  you  had  no  conversation  with 
Sergeant  Garty,  or  Wales,  as  to  what  you 
mew,  before  you  went  into  the  wardroom  ? 

A.  No,  sir. 

The  examination  of  William  H.  King 
was  here  suspended  ;  his  evidence  was  read 
to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Thursday),  February  23,  at  10  o'clock, 
A.  M. 


NAVY  YARD,        > 
Brooklyn,  Feb.  23,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
Read,  "        Page, 

Bolton,  "        Gwinn, 

Turner,  "        Wyman, 

Sloat,          Com'dr  Ogden, 
Storer,  "        Shubrick, 

Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Captain  Smith  sent  the  following  note, 
which  was  read  by  the  judge  advocate. 

"  U.  S.  NAVY  YARD, 
"Brooklyn,  Feb.  23,  1843. 
"  This  is  to  certify,  that  Captain  Smith 
is  too  much  indisposed  to  attend  the  naval 
court  martial  this  day. 

"  Respectfully, 

"  JOHN  HASLETT,  Surgeon. 
"  To  the  President  of  the  U.  S.  Naval  Court 
Martial,  Brooklyn  navy  yard." 

William  H.  King  recalled. 

CROSS-EXAMINED  BY  THE    JUDGE  ADVOCATE. 

Q.  You  say  you  heard  Cromwell  tell  Mr. 
Spencer, one  night,  that  he  (Cromwell)  would 
like  to  have  command  of  a  vessel,  and  go 
round  the  Isle  of  Pines  ;  how  long  was  this 
before  the  arrest  of  Mr.  Spencer  ? 


PROCEEDINGS  OF  THE 


A.  About  three  days. 

Q.  Did  Cromwell  then  tell  Mr.  Spencer 
that  there  were  plenty  of  men-of-war's-men 
at  that  island  ? 

A.  No,  sir. 

Q.  Was  it  immediately  after  Cromwell's 
remark,  that  "he  would  like  to  have  the 
command  of  a  vessel,  to  go  to  the  Isle  of 
Pines,"  that  Mr.  Spencer  asked  Cromwell 
if  there  was  any  fruit  there  ? 

A.  Yes,  sir. 

Q.  Who  do  you  mess  with  ? 

A.  George  Kneavels,  Golderman,  Gage- 
ly,  Sullivan,  Franey,  and  Snyder,  who  has 
run. 

Q.  Are  you  stationed  at  quarters  with 
Edward  Fowler  ? 

A.  No,  sir. 

Q.  Was  it  not  when  the  jib  worked  badly 
that  you  heard  Cromwell  curse  it  and  the 
inventor  of  the  lacings  ? 

A.  Yes,  sir. 

Q.  Have  you  never  seen  Cromwell  with 
his  boatswain's  mate's  reports  in  his  hand  1 

A.  Yes,  sir;  his  reports  of  the  store- 
room. 

Q.  Have  you  ever  seen  Cromwell  and 
Mr.  Spencer  working  out  a  day's  work  ? 

A.  No,  sir. 

Q.  Have  you  not  known  Mr.  Delonde 
send  Mr.  Tillotson  to  talk  with  the  older 
seamen  ? 

A.  No,  sir,  only  on  duty,  when  they  were 
ordered  to  tell  them  a  thing. 

Q.  When  the  young  officers  would  come 
up  from  dinner,  would  they  not  talk  with  the 
petty  officers  about  matters  at  home  ? 

A.  I  never  took  notice  of  it. 

Q.  Did  you  ever  know  of  Green's  prick- 
ing India  ink  into  Mr.  Delonde's  arm,  or 
Wales's. 

A.  No,  sir. 

BY    COMMANDER    MACKENZIE. 

Q.  From  your  slight  knowledge  of  the 
service,  from  what  you  have  heard  read  of 
the  regulations  of  the  navy  of  penalties  for 
treating  with  contempt  a  superior,  being  in 
the  execution  of  his  office — for  "  uttering 
mutinous  and  seditious  words" — did  you 
consider  it  innocent  language  in  Cromwell 
to  curse  the  commander  and  wish  him  in 
hell,  whether  the  jib  worked  badly  or  not  ? 

.A.  No,  sir,  I  did  not. 

BY   THE  JUDGE  ADVOCATE. 

Q.  Why,  then,  did  you  not  report  it  ? 


A.  A  great  many  others  heard  it ; 
officers    on   the    quarter-deck   might   have 
heard  it ;  he  spoke  loud  enough. 

The  testimony  of  William  H.  King  hei 
closed  ;  his  evidence  was  read  to  him  ai 
corrected  by  him. 

Billinger  Scott  was  then  called,  and  bein^ 
sworn  by  the  president  of  the  court,  testifiec 
as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name  and  age  ?  Wei 
you  on  board  the  Somers  in  her  last  cruise 

A.  Billinger  Scott ;  my  age  15  years  ; 
was  second  class  apprentice  on  board  of  tl 
Somers  in  her  last  cruise. 

Q.  Have  you  ever  overheard  any  pi 
vate  conversation  between  Mr.  Spencer  ai 
Cromwell  ?  If  so,  state  it. 

A.  Yes,  sir;  I  heard   Mr.   Spencer  asl 
Cromwell  if  he  could   disguise  the  brig 
Cromwell  said  "  yes ;"  Mr.  Spencer  ask( 
if  he  could  disguise  her  so  as  to  bring  h( 
into  New  York ;  Cromwell  said  he  could 
Mr.   Rogers   was    coming   forward   at   th< 
time  ;  he  said  he  "  could  do  it  in  damne 
short  order,  by  shipping  the  bowsprit  aft ;' 
then  Mr.  Spencer  told  me  to  take  his  har 
mock  down,  and  I  heard  no  more. 
•    Q.  Were  Mr.  Spencer  and  Crom^vell  seri- 
ous when  this  conversation  began  ? 

A.  Yes,  sir,  they  appeared  to  be. 

Q.  What  was  the  manner  of  Mr.  Spenc< 
when  Mr.  Rogers  came  up  ? 

A.  Cromwell  turned  it  off,  and  Mr.  Spei 
cer  went  on  the  larboard  side. 

Q.  Did  you  ever  see  Mr.  Spencer,  Small, 
and  Cromwell,  in  conversation  ?  Did  you 
overhear  this  conversation  ?  If  so,  state 
what  you  heard. 

A .  Yes,  sir  ;  I  heard  them  talking  about 
slavers  ;  I   heard   Mr.   Spencer  ask  Small 
how  they  got  the  slaves  ;  Small  said  the] 
went  up  the  rivers  in  Africa  ;  they  wouk 
anchor  off  in  the  brig  they  went  up  in,  ai 
take  the  long  boat  and  go  ashore  ;  he  saic 
no  more. 

Q.  Have  you  ever  seen  Mr.  Spencer  give 
liquor  to  any  one  ? 

A.  No,  sir. 

Q.  Have  you  ever  seen  Mr.  Spencer  give 
liquor  to  Small  ? 

A.  No,  sir. 

Q.  Have  you  ever  known  him  to 
money  or  tobacco  to  any  one  ? 

A.  Yes,  sir ;  he  gave  tobacco  to  me ; 


NAVAL  COURT  MARTIAL. 


91 


never  saw  him  give  tobacco  or  money  to 
others  ;  he  has  given  me  money  for  taking 
care  of  his  hammock. 

Q.  What  occurred  when  Mr.  Spencer 
gave  you  tobacco  ? 

A.  He  asked  me  if  I  wanted  some  to- 
bacco ;  I  told  him  it  was  against  the  com- 
mander's orders ;  he  said,  "  if  I  got  hauled  up 
for  it,  he  would  stand  between  me  and  the 
commander ;"  I  took  the  tobacco. 

Q.  Were  you  Mr.  Spencer's  hammock- 
boy  ?  Has  he  ever  asked  you  if  you  liked 
to  sail  with  him  ?  If  so,  state  what  oc- 
curred. 

A.  Yes,  sir;  he  asked  me  how  I  would 
like  to  sail  with  him  ;  I  told  him  I  would 
like  it  very  well. 

Q.  Did  he  ask  you  what  class  boy  you 
were? 

A.  Yes,  sir ;  I  told  him  I  was  second 
class  boy ;  he  said  when  he  got  to  be  com- 
mander he  would  rate  me  "  seaman." 

BY  THE  JUDGE  ADVOCATE. 

Q.  Were  you  much  in  the  steerage  ? 

A.  No,  sir. 

Q,  Do  you  know  Mr.  Delonde  and  Mr. 
Tillotson  much  ? 

A.  Yes,  sir. 

Q.  Did  you  ever  do  any  little  acts  of  ser- 
vice for  Mr.  Delonde  or  Mr.  Tillotson  ? 

A.  I  took  care  of  Mr.  Delonde's  cot  a 
little  while. 

Q.  Did  Mr.  Delonde  ever  give  you  any- 
thing for  this  ? 

A.  No,  sir. 

Q.  Did  either  Mr.  Delonde  or  Mr.  Tillot- 
son use  tobacco  ? 

A.  They  both  used  tobacco. 

Q.  Did  you  never  see  either  of  them  give 
tobacco  to  the  men  or  boys  ? 

A.  No,  sir. 

Q.  How  large  a  piece  of  tobacco  did  Mr. 
Spencer  give  you  ? 

A.  Two  or  three  times,  a  pound  each 
time. 

Q.  What  part  of  the  cruise  was  it  that  he 
gave  you  this  tobacco  ? 

A.  When  we  were  at  Madeira. 

Q.  Were  you  Mr.  Spencer's  hammock- 
boy  all  the  cruise  till  his  arrest  ? 

A.  Yes,  sir. 

Q.  Did  you  try  to  be  smart  and  please 
him  ? 

A.  Yes,  sir. 

Q.  When  was  it  you  heard  this  talk  about 


disguising  the  brig — how  long  before  the 
arrest  ? 

A.  About  a  week. 

Q.  What  time  of  the  day  was  it  ? 

A.  About  6  o'clock  in  the  evening. 

Q.  Have  you  not  heard,  during  the  cruise, 
a  great  many  men  talk  about  pirates  and 
slavers  ? 

A.  No,  sir ;  I  heard  none,  but  Small  and 
Mr.  Spencer. 

Q.  Did  not  the  men  spin  yarns  about 
such  things  ?  think — have  you  not  heard 
from  the  seamen,  many  stones  about  such 
things  ? 

A.  No,  sir. 

Q.  Do  you  remember  the  Somers  being 
chased,  by  what  was  thought  an  English 
cruiser? 

A.  Yes,  sir. 

Q.  Have  you  not  heard  the  men  talk 
about  the  rake  of  the  masts  of  the  Somers  ? 

A.  I  have  heard  some  of  them  say,  they 
raked  a  good  deal. 

Q.  Did  not  the  men  say,  they  thought  the 
cruiser  was  chasing  them,  because  she  took 
the  Somers  to  be  a  pirate  or  a  slaver  ? 

A.  Yes,  sir. 

Q.  How  long  was  this  before  the  arrest? 

A.  I  don't  remember. 

Q.  Was  it  not  shortly  before  you  reached 
St.  Thomas  ? 

A.  I  think  it  was. 

Q.  When  the  cruiser  was  chasing  you, 
was  there  not  talking  about  the  brig,  about 
pirates  and  slavers  ? 

A.  No  more  than  they  said  they  took  us 
for  a  slaver. 

Q.  Have  you  ever  seen  Mr.  Spencer 
working  a  day's  work  ? 

A.  No,  sir. 

Q.  When  Mr.  Spencer  and  Cromwell 
were  talking,  how  came  you  by  ? 

A.  I  was  sitting  on  the  main-stay,  when 
they  came  forward. 

Q.  Was  it  about  the  time  for  taking  down 
hammocks  ? 

A.  It  was  after  the  hammocks  were  down. 

Q.  I  thought  you  said  Mr.  Spencer,  at 
the  end  of  the  conversation,  told  you  to  take 
his  hammock  down  ? 

A.  Yes,  sir,  he  did ;  the  crew's  ham- 
mocks had  been  taken  down  about  half  an 
hour  before. 

Q.  When  did  you  first  tell  of  having  heard 
this  conversation  between  Mr.  Spencer  and 
Cromwell  ? 


92 


PROCEEDINGS  OF  THE 


.A.  I  told  it  in  the  wardroom,  after  the 
prisoners  were  taken  away — after  we  got  in. 

Q.  After  you  came  in,  who  first  asked 
you  what  you  knew  of  any  of  these  matters  ? 

A.  Mr.  Gansevoort. 

Q.  How  came  you  to  have  your  first  con- 
versation with  Mr.  Gansevoort,  after  you 
came  in  ? 

A.  He  called  me  in  the  wardroom,  and 
asked  me  if  I  knew,  or  ever  heard,  Mr. 
Spencer,  Cromwell,  and  Small,  talking. 

Q.  Had  you  never  told  any  one,  before 
Mr.  Gansevoort  called  you  into  the  ward- 
room ? 

A.  No,  sir. 

Q.  What  did  Mr.  Gansevoort  say  to  you, 
when  he  called  you  in?  tell  everything. 

A.  He  asked  me  "  whether  I  heard  Mr. 
Spencer  and  Cromwell,  or  Small,  talking ;" 
I  told  him  just  as  I  have  stated  here. 

Q.  Did  he  tell  you  it  would  be  better  for 
you  to  tell  everything  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  Small,  after  the  arrest 
of  Mr.  Spencer,  say  anything  about  Mr. 
Spencer  being  drunk  or  crazy? 

A.  No,  sir. 

Q.  After  Mr.  Spencer,  Cromwell,  and 
Small,  were  in  irons,  did  you  hear  any 
of  the  crew  say  anything  about  releasing 
them  ? 

A.  No,  sir. 

Q.  From  anything  you  saw  and  heard, 
did  you  suppose  there  would  be  any  attempt 
to  rescue  the  prisoners  ? 

A.  No,  sir;  I  did  not. 

Q.  Did  you  ever  hear  any  of  the  crew 
talk  about  taking  the  brig  ? 

A.  No,  sir. 

Q.  When  Mr.  Spencer  was  first  arrested, 
was  it  talked  about  that  it  was  for  fighting 
with  Mr.  Thompson  ? 

A.  Yes,  sir. 

Q.  Would  the  men  and  boys  gather  on 
the  spar-deck,  and  talk  about  the  cause  of 
his  arrest  ? 

A.  Yes,  sir. 

Q.  When  did  you  first  hear  of  the  paper 
found  in  Mr.  Spencer's  locker  ? 

A.  Not  till  the  captain  spoke  about  it,  af- 
ter flogging  Waltham. 

Q.  What  did  the  captain  say  about  the 
papers  then  ? 

A.  I  don't  remember  what  he  said. 

Q.  Did  you  ever  hear  that  one  of  these 
papers  had  been  taken  out  of  a  book  ? 


A.  No,  sir. 

Q.  Did  yon  not  hear  that  one  of  tl 
papers  had  geometrical  figures  on  the  bt 
of  it? 

A.  No,  sir,  I  don't  remember. 

Q.  What  was  said  among  the  crew 
those  papers  ? 

A.  I  don't  remember  ever  hearing  ai 
talk  about  them. 

Q.  Did  you  not  hear  of  the  names 
were  on  those  papers  ? 

A.  No,  sir. 

Q  Did  you  not  hear  that  M'Kinley 
making  up  Mr.  Gansevoort's  bed,  when  Mi 
Rogers  was  translating  the  papers  whic 
were  found  in  Mr.  Spencer's  locker  ? 

A.  No,  sir. 

Q.  Did  you  know  that  your  name  wj 
down  on  that  paper  ? 

A.  No,  sir. 

Q.  Have  you  ever  told  Mr.  Spencer 
would  join  him  in  a  mutiny  ? 

A.  No,  sir. 

Q.  Did  you  know  what  Mr.  Spencer  vri 
arrested  for  at  the  time  ? 

A.  No,  sir. 

Q.  Did  any  of  the  officers,  or  petty  offi- 
cers, ask  you,  before  your  arrival,  what  you 
knew  of  the  mutiny  ? 

A.  No,  sir. 

BY  CAPTAIN  GWINN. 

Q.  Was  it  not  your  duty  to  take  Mr. 
Spencer's  hammock  up  and  down,  without 
his  paying  you  for  it  ? 

A.  It  was  not  my  duty  to  take  his  ham- 
mock up  and  down,  without  being  paid 
for  it. 

BY  COMMANDER  MACKENZIE. 

Q.  If  you  were  ordered  by  Mr.  Spencer, 
to  take  his  hammock  up  and  down,  would 
you  have  obeyed  the  order,  or  would  you 
have  said,  "  No,  not  unless  you  pay  me  ?" 

A.  No,  sir;  I  would  not  have  said  that. 

The  testimony  of  Bellinger  Scott  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Lieut.  Gansevoort  recalled. 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  Were  the  topgallant-studding-sail  co\ 
ers  converted  into  bags,  in  order  to  keep  tl 
prisoners  warm  and  dry  in  cold,  or  rainy 
weather  ? 


NAVAL  COURT  MARTIAL. 


A.  Yes,  sir;  they  were. 
Q.  Were  these  bags  tarpaulined,  and  did 
they  keep  out  rain  ? 

A.  Yes,  sir,  I  believe  they  did  ;  some 
water  may  have  come  in  at  the  top,  but  they 
had  south-westers  made,  with  large  capes, 
so  as  to  extend  over  their  shoulders. 

Q.  Were  they  entirely  enclosed,  head 
and  all,  in  these  bags  ? 

A.  They  came  up  over  the  shoulders 
with  a  drawing  string. 

Q.  Did  the  bags  leave  the  prisoners 
power  to  move  their  limbs  1  were  they  tight 
or  otherwise  ? 

A.  They  were  very  loose. 
Q.  Were  blankets   added  inside  of  the 
bags,   as  the  brig  made  nothing,  and  the 
weather  grew  colder? 

A.  Yes,  sir ;  they  were  furnished  with 
from  three  to  four  blankets,  and  some  had 
more,  I  believe,  and  their  pea-jackets. 

Q.  Had  not  some  of  the  prisoners  com- 
plained of  the  cold  before  the  bags  were 
put  round  them  ? 

A.  I  believe  they  had;  M'Kinley  asked 
me  to  see  that  they  did  not  suffer  when 
they  got  into  cold  weather ;  I  believe  that 
one  reason  why  the  bags  were  made. 

Q.  Were  they  not  better  protected  in  bad 
weather,  than    anybody — commander,  offi- 
cers, or  men — who  kept  the  deck  ? 
A.  Yes,  sir;  I  believe  they  were. 
Q.  Were  they  supplied  with  fruit,  after 
leaving  St.  Thomas  ? 

A.  The  same  rations  as  were  served  to 
the  crew  ;  had  hot  coffee  and  fruit,  when 
the  rest  of  the  crew  had. 

Q.  Where  did  the  fruit  come  from,  that 
was  given  to  the  prisoners  ? 

A.  The  greater  part  from  the  command- 
er ;  one  quarter,  I  believe,  from  the  ward- 
room mess — the  remainder  from  the  com- 
mander. 

Q.  When   the  weather   became    worse 
were  they,  at  every  risk,  removed  below  on 
the  birth-deck,  and  guarded  in  the   apart 
ment  occupied  by  the  crew  ? 
A.  They  were. 

Q.  Was   the    commander   solicitous,    o 
otherwise,  about  the  comfort  of  the  prison 
ers,  so  far  as  was  consistent  with  their  safe 
keeping  ? 

A.  He  was  very  solicitous  about  thei 
comfort,  and  gave  me  repeated  orders  to  d< 
all  that  would  contribute  to  their  comfort 
without  endangering  their  safety. 


BY  THE  JUDGE  ADVOCATE. 

Q.  When  were  those  bags  put  round  the 
prisoners  ? 

A.  When  we  began  to  get  into  cold 
weather ;  I  don't  remember  the  time ;  it 
may  be  entered  in  the  log-book ;  my  im- 
pression is,  that  it  was  after  we  left  St. 
Thomas.  I  am  not  positive  as  to  the  time  ; 
he  bags  were  made  some  days  before  they 
were  used. 

Q.  Was  a  bag  put  round  each  man  ? 

A.  Yes,  sir. 

Q.  Did  any  of  the  prisoners  complain  of 
lie  confinement  of  those  bags  ? 

A.  I  did  not  hear  any;  my  impression 
is,  that  they  were  rather  pleased  with  them  ; 
after  the  prisoners  were  taken  below,  the 
boys  made  use  of  the  south-westers,  in 
preference  to  their  hats. 

Q.  Were  the  bags  kept  on,  when  the 
prisoners  were  removed  below  ? 

A.  No,  sir;  they  were  taken  off  then. 

Q.  When  were  they  taken  below  ? 

A.  I  don't  recollect  the  exact  date  ;  when 
the  weather  got  too  severe — it  was  a  short 
time  before  our  arrival. 

Q.  Was  any  of  the  prisoners  frost-bitten  ? 

A.  No,  sir,  I  believe  not;  none  to  my 
knowledge. 

Q.  Had  this  confinement  in  bags  any  ref- 
erence to  the  security  of  the  prisoners,  that 
they  might  not  release  themselves  from 
irons  ? 

A.  To  the  comfort  of  the  prisoners,  not 
to  their  security.  I  don't  think  it  made 
them  any  more  secure. 

Q.  Are  any  of  those  bags  remaining  on 
board  the  Somers  ? 

A.  I  believe  they  are  ;  you  can  ascertain 
in  a  short  time. 

Q.  Did  you  not  learn  from  M'Kinley, 
that  his  feet  were  frozen  ? 

A.  No,  sir. 

BY  CAPTAIN  BOLTON. 

Q.  Did  not  the  confinement  of  the  pris- 
oners, in  the  bags  spoken  of,  rather  render 
their  security  more  precarious,  as  without 
being  observed,  they  might  have  worked 
their  concealed  irons  off? 

A.  Yes,  sir. 

Q.  Had  you  cold  weather,  before  you 
reached  St.  Thomas  ? 

A.  No,  sir. 

Q.  Take  the  log-book,  and  tell  me  the 
thermometric  temperature,  as  recorded  there 


94 


PROCEEDINGS  OF  THE 


at  midnight,  for  each  day,  from  the  1  st  of 
December  till  you  reached  here  ? 

A.  On  Dec.  1st,  78°  on  the  8th,  74° 
"  3d,  79°  "  9th,  74° 
"  3d,  79°  "  10th,  72° 
"  4th,  78°  "  llth,  67° 
"  5th,  78°  "  12th,  62° 
"  6th,  78°  "  13th,  38° 
"  7th,  77°  "  14th,  30° 

Q.  What  was  the  the  temperature  for  the 
twenty  last  days  of  November,  at  midnight  ? 

A.  On  Nov.  10th,  78°  on  the  21st,  80° 
"  llth,  78°  "  22d,  79° 
"  12th,  78°  "  23d,  79° 
"  13th,  79°  "  24th,  78° 
"  14th,  79°  "  25th,  77° 
"  15th,  81°  "  26th,  78° 
"  16th,  78°  "  27th,  77° 
"  17th,  82°  "  28th,  78° 
"  18th,  82°  "  29th,  78° 
"  19th,  82°  "  30th,  78° 
"  20th,  79° 

BY  COMMANDER  MACKENZIE. 

Q.  Had  the  object  of  the  bags  been  con- 
finement, instead  of  comfort,  were  they  not 
more  necessary,  as  a  means  of  confinement, 
when  the  prisoners  were  among  the  crew 
on  the  birth-deck  ? 

A,  Undoubtedly  they  were  more  neces- 
sary below,  than  on  the  spar-deck. 

Q.  By  whose  order  and  at  whose  sug- 
gestion were  the  prisoners  removed  below  ? 
had  they  ever  proffered  such  a  request  on 
their  own  behalf? 

A.  By  the  commander's  orders,  and  I 
don't  know  that  they  ever  made  such  a  re- 
quest ;  they  made  all  requests  to  me,  and  I 
should  have  known  it. 

BY  JUDGE  ADVOCATE. 

Q.  Were  the  bags  worn  in  the  daytime  ? 

A.  Only  in  bad  weather  and  at  night. 

Q.  Give  the  dimensions  of  the  bags  now 
in  court. 

A.  The  smaller  one  is  6  feet  4  inches  in 
length,  6  feet  4  inches  around  the  muzzle, 
3  feet  2  inches  across  it ;  the  larger  one 
across  the  middle,  it  being  the  same  width 
all  along,  3  feet  8  inches  across,  7  feet  4 
inches  in  circumference,  7  feet  3  inches  in 
length. 

Q.  Did  the  prisoners  not  wear  these  bags 
as  much  as  eight  or  ten  days  in  the  day- 
time ? 

A.  No,  sir,  they  did  not  wear  them  that 
length  of  time  in  the  daytime. 


Q.  Please  state  from  the  logbook  the  first 
morning  entry  as  to  the  weather  for  eacl 
day  from  the  1st  of  December  to  the  II 

A.  Dec.  1st,  at  noon,  moderate  breezes 
and  pleasant. 


Dec.  2d, 

do. 

do. 

do. 

Dec.  3d, 

do. 

do. 

do. 

Dec.  4th, 

do. 

do. 

do. 

Dec.  5th, 

do. 

do. 

do. 

Dec.  6th, 

do. 

do. 

do. 

Dec.  7th, 

do. 

do. 

do. 

Dec.  8th, 

do. 

do. 

do. 

Dec.  9th. 

do. 

do. 

do. 

Dec.  10th,  at  noon,  light  breezes  am 

pleasant. 

The  examination  of  Lieutenant  Ganse- 
voort  here  closed  ;  his  evidence  was  read 
him  arid  corrected  by  him. 

Samuel  Van  Norden  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER   MACKENZIE. 

Q.  What  is  your  name,  age,  and  rank  ? 
and  were  you  on  board  the  Somers  in  her 
last  cruise  ? 

A.  My  name  Samuel  Van  Norden,  my 
age  fifteen  years  ;  I  was  third-class  appren- 
tice in  the  last  cruise  of  the  Somers. 

Q.  Were  you  on  deck  when  the  main- 
top-gallantmast  was  carried  away  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  the  order  given  to  let 
go  the  weather-mainroyal-brace  ?  and  did 
you  see  where  Cromwell  and  Small  were 
then  sitting  ? 

A.  I  heard  some  order  given,  I  am  not 
sure  what  it  was  ;  Cromwell  and  Small 
were  sitting  on  the  bitts  together. 

Q.  Did  either  or  which  of  them  get  up 
when  the  order  was  given,  and  haul  up  on 
the  brace  ?  and  if  so,  what  followed  ? 

A.  Small  got  up  and  hauled  on  the  brace, 
and  the  mast  was  carried  away. 

Q.  How  did  he  haul — gently,  or  other- 
wise? 

A.  He  hauled  violently. 

Q.  Did  you  ever  hear  any  conversation 
between  Mr.  Spencer  and  Cromwell  about 
disguising  the  brig  ?  if  so,  state  what  you 
heard. 

A.  They  were  on  the  forecastle  in  the 
dog  watch  ;  Mr.  Spencer  asked  Cromwell 
how  he  could  disguise  the  brig;  he  said, 
"  by  shipping  the  bowsprit  aft,"  that  is  all ; 
there  was  an  officer  coming  forward  at  the 


NAVAL  COURT  MARTIAL. 


95 


time,  I  do  not  recollect  who  it  was ;  he 
(Cromwell)  seemed  as  if  he  tried  to  turn 
it  off. 

Q.  Did  you  ever  hear  Cromwell  say  any- 
thing about  making  way  with  the  small 
boys  ?  if  so,  what  1 

A.  I  did  not  hear  anything  about  the 
small  boys ;  he  said  "  the  boys  ;"  that  he 
would  like  to  set  them  on  the  cathead  and 
shove  them  overboard-. 

Q.  How  did  Cromwell  try  to  turn  it  off? 
what  was  his  appearance  and  manner  when 
the  officer  came  up  ? 

A.  He  said,  "  by  shipping  the  bowsprit 
aft,"  and  then  went  forward. 

BY  THE  JUDGE  ADVOCATE. 

Q  Who  gave  the  order  when  the  topgal- 
lantmast  was  carried  away  ? 

A.  I  can  not  say  who. 

Q.  Did  you  see  Mr.  Oliver  Perry  give 
any  order  at  that  time  ? 

A.  No,  sir. 

Q.  Did  you  hear  any  one  come  forward 
and  tell  Mr.  Oliver  Perry  that  the  .comman- 
der wamed  him  aft,  soon  after  the  occur- 
rence to  the  mast  ? 

A.  No,  sir. 

Q.  Did  you  see  Mr.  Oliver  Perry  at  that 
time  at  all  ? 

A.  Yes,  sir,  he  was  on  the  forecastle. 

Q.  Did  you  ever  hear  Small  speak  as  to 
how  that  mast  was  carried  away  ? 

A.  No,  sir. 

Q.  Try  and  recollect  who  gave  the  order, 
and  who  repeated  it  before  Small  got  up  to 
the  brace. 

A.  I  do  not  know  who  gave  the  order, 
the  commander  repeated  it. 

Q.  Did  you  see  M'Kinley  soon  after  the 
occurrence  ? 

A.  No,  sir. 

Q.  Where  was  the  commander  stand- 
ing ? 

A.  I  believe  he  was  on  the  weatherside 
of  the  quarter-deck. 

Q.   What  made  you  observe  Small  ? 

A.  He  hauled  so  violently  on  the  brace. 

Q.  Who  else  but  Small  was  on  the 
brace  ? 

A.  I  do  not  know. 

Q.  Were  not  several  persons  there  ? 

A.  I  think  there  were  two;  I  am  not 
sure. 

Q.  Were  not  several  men  near  Small  ? 


A.  The  men  between  Nos.  1  and  2  guns, 
on  the  starboard  side. 

Q.  What  were  the  men  about  between 
Nos.  1  and  2  guns  ? 

A.  I  don't  know  what  they  were  about. 

Q.  Could  these  men  have  seen  what 
Small  was  about  ? 

A.  Yes,  sir. 

Q.  Who  were  these  men,  as  well  as  you 
can  remember  ? 

A.  I  do  not  remember  any  but  the  man 
King. 

Q.  When  did  you  first  tell  that  Small  had 
so  acted  with  the  brace  ? 

A.  I  can't  recollect ;  it  was  after  we  got 
here. 

Q.  Was  there  not  much  talk  aboard  the 
brig,  about  that  mast  being  carried  away 
purposely,  at  the  time,  or  soon  after  ? 

A.  There  was  some  talk  about  it. 

Q.  Did  anybody  speak  of  its  having  hap- 
pened by  Small's  fault  at  the  time,  or  soon 
after  ? 

A.  Not  that  I  know  of. 

Q.  Did  you  ever  hear  any  one,  at  the 
time,  or  soon  after,  speaking  as  to  who  did 
make  that  mast  to  be  carried  away  ? 

A.  No,  sir. 

Q.  Did  you  not  hear  it  said  at  the  time, 
and  soon  after,  that  the  mast  was  carried 
away  to  rescue  Mr.  Spencer  ? 

.A.  No,  sir  ;  not  that  I  recollect. 

The  examination  of  Samuel  Van  Norden 
was  here  suspended  ;  his  evidence  was  read 
to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Friday),  February  24,  at  10  o'clock, 
A.M. 


NAVY  YARD,          > 
Brooklyn,  Feb.  24,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

Capt.  Smith  sent  the  following  certihV 


96 


PROCEEDINGS  OF  THE 


cate,  which  was  read  by  the  judge  advo- 
cate. 

"  U.  S.  NAVY  YARD,      > 
"  Brooklyn,  Feb.  24,  1843.  $ 
"  This  is  to  certify  that  Captain  Joseph 
Smith  is  too  much  indisposed  to  attend  the 
Naval  Court  Martial  this  day. 
"  Respectfully, 

"  JOHN  HASLETT,  Surgeon. 
"  To  the  President  of  the  Naval  Court  Mar- 
tial, Brooklyn  Navy  Yard." 

The  journal  of  the  preceding  day  was 
read  arid  approved. 

Samuel  Van  Norden  recalled. 

CROSS-EXAMINED   BY  THE  JUDGE  ADVOCATE. 

Q.  What  time  rwas  it  you  heard  Crom- 
well telling  Mr.  Spencer  how  to  disguise 
the  brig  ? 

A.  In  the  dog-watch,  about  6  o'clock. 
Q.  How  long  before  the  arrest? 
A.  It  was    after  we    left   the    coast  of 
Africa. 

Q.  Was  it  after  the  cruiser  was  chasing 
you  ? 

A.  I  am  not  sure. 

Q.  If  the  bowsprit  of  the  Somers  had 
been  put  aft,  would  she  have  been  disguised 
so  that  you  would  not  have  known  her  ? 

A.  No,  sir;  I  don't  think  I  should,  or 
anybody  else  ? 

Q.  If  one  of  the  seamen  had  told  you  he 
could  have  disguised  the  Somers  by  putting 
the  bowsprit  aft,  so  that  she  could  come  in- 
to New  York  and  not  be  known,  would  you 
not  have  "supposed  he  was  laughing  at  you  ? 
A.  Yes,  sir. 

Q.  Did  you  tell  this  conversation  be- 
tween Cromwell  and  Mr.  Spencer  before 
your  arrival  ? 

A.  No,  sir  ;  I  don't  think  I  did. 
Q.  Did  you  hear  Cromwell  declare  him- 
self innocent  when  about  to  die  ? 
A.  No,  sir. 
Q.  Was  there  not  a  great  deal  of  talk 
aboard  ship,  after  the  arrest  and  before  your 
arrival,    as    to    Cromwell's    guilt   or   inno- 
cence ? 

A.  Yes,  sir  ;  there  was  some  talk  about  it. 
Q.  Hearing  this  talk,  how  is  it  you  did 
not  tell  of  this  conversation  between  Crom- 
well and  Mr.  Spencer? 
A.  I  was  not  asked. 
Q.  Did  you  hear  anything  of  the  papers 


bund  in  Mr.  Spencer's  locker  after  the 
rest  and  before  your  arrival  ? 

A.  I  heard  there  were  some  papers  four 

Q.  What  did  you  hear  about  them? 

A.  I  heard  there  were  some  papers  fouiu 
and  some  figures  on  them. 

Q.  What  sort  of  figures? 

A.  I  did  not  hear. 

Q.  Did  you  hear  anything  about  the  pa- 
pers having  come  out  of  a  book,  and  looking 
as  if  it  had  been  doubled  up  ? 

A.  No,  sir. 

Q.  How  many  papers  did  you  hear  were 
found  ? 

A.  I  heard  there  was  a  paper  found  ; 
did  not  hear  how  many. 

Q.  Did  you  hear  anything  about  nann 
being  on  one  of  those  papers  ? 

A.  No,  sir ;  did  not  hear  anything  aboi 
it  until  we  arrived  here. 

Q.   How  soon  after  you  arrived  here  ? 

A.  I  saw  it  in  the  papers  after  the  court 
of  inquiry  commenced. 

Q.  Did  the  people  say  nothing  but  that  a 
paper  had  been  found  in  Mr.  Spencer's 
locker  with  figures  on  before  your  arrival  ? 

A.  That  is  all  I  remember  of  hearing. 

BY   COMMODORE    DOWNES. 

Q.  When  Cromwell  said  he  would  ship 
the  bowsprit  aft,  in  reply  to  Mr.  Spencer's 
question  as  to  how  he  would  disguise  the 
Somers,  did  you  or  not  think  that  he  said 
so  to  turn  it  off  as  a  joke,  in  consequence 
of  an  officer  coming  forward  at  the  time  ? 
Did  Mr.  Spencer  appear  serious  when  he 
asked  Cromwell  how  he  would  disguise  the 
Somers  ? 

A.  I  thought  he  intended  to  turn  it  off  as 
a  joke,  in  consequence  of  the  officer's  com- 
ing^ forward.  Mr.  Spencer  appeared  seri- 
ous. 

Q.  Do  you  know  how  you  came  to  be 
called  into  the  wardroom  by  Mr.  Ganse- 
voort  after  your  arrival  ?  ' 

A.  No,  sir ;  I  don't. 

Q.  In  what  part  of  the  brig  were  Mr. 
Spencer  and  Cromwell  when  you  heard 
this  conversation  about  disguising  her  ? 

A.  On  the  forecastle. 

Q.  Was  the  forecastle  Mr.  Spencer's 
station  when  he  had  a  watch  ? 

A.  Yes,  sir. 

Q.  Was  it  in  Mr.  Spencer's  watch,  when 
the  conversation  took  place  ? 

A.  I  do  not  recollect. 


NAVAL  COURT  MARTIAL. 


97 


Q.  Were  Mr.  Spencer  and  Cromwell  in 
the  same  watch  ? 

A.  Yes,  sir. 

Q.  Were  you  standing  by,  or  passing, 
when  this  conversation  between  Cromwell 
and  Mr.  Spencer  took  place  ? 

A.  I  was  standing  by  No.  1  gun. 

Q.  Was  any  one  with  you  ? 

A .  Not  that  I  recollect. 

Q.  Who  was  with  Mr.  Spencer  and 
Cromwell,  or  near  them,  beside  yourself? 

A.  I  do  not  remember. 

Q.  Though  you  do  not  remember  who 
they  were,  were  there  not  others  with  them, 
or  by  them  ? 

A.  Yes,  sir  ;  I  think  there  were  others 
near  them. 

Q.  Where  were  these  others  standing? 

A.  They  were  standing  by  the  bowsprit 
bitts. 

Q.  How  far  was  that  from.  Mr.  Spencer 
and  Cromwell  ? 

A.  About  six  feet. 

Q.  Were  you  not  farther  from  Cromwell 
and  Mr.  Spencer  than  those  persons  were-? 

A.  Yes,  sir. 

Q.  Bid  any  laugh  take  place  at  Crom- 
well's answer  ? 

A.  Not  that  I  recollect. 

Q.  Did  you  never  hear  the  men  talk 
about  this  answer  of  Cromwell's  after- 
ward ? 

A.  No,  sir,. 

Q.  When  called  into  the  wardroom,  did 
Mr.  Gansevoort  tell  you  it  would  be  a 
good  thing  for  you  to  tell  everything  you 
knew  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  the  commander  tell  the 
crew,  after  the  arrest,  about  Mr.  Spencer's 
plan  of  pirating  and  of  going  to  the  Isle  of 
Pines  ? 

A.  Yes,  sir ;  I  could  not  hear  well. 

Q.  Though  you  did  not  hear  well,  what 
did  you  hear  ? 

A.  I  heard,  him  say  Mr.  Spencer  intend- 
ed to  take  the  brig  and  go  to  the  Isle  of 
Pines  ;  I  heard  him  say  that  he  (Mr.  Spen- 
cer) intended  to  make  the  small  boys  walk 
the  plank. 

Q.  Did  he  mention  Cromwell's  name  ? 

A.  Not  that  I  recollect. 

BY   CAPTAIN    OGDEN. 

Q.  Has  any  inducement  ever  been  offer- 
ed to  you  by  Lieut.   Gansevoort,  or  any 
13 


other  person,  to  say  what  was -not  strictly 
the  truth  in  this  case  ? 
A.  No,  sir. 

BY   THE  JUDGE  ADVOCATE. 

Q.  After  full  reflection,  say  was  the  rea- 
son you  did  not  tell  about  Small's  having 
pulled  on  the  brace,  and  about  the  conver- 
sation between  Mr.  Spencer  and  Cromwell, 
before  your  arrival  ? 

A.  1  told  as  soon  as  I  was  asked. 

Q.  Were  all  the  boys  called  into  the 
wardroom  after  your  arrival  ? 

A.  Not  that  I  know  of. 

Q.  Have  you  not  heard  others  of  the  old 
seamen  besides  Cromwell  curse  the  boys, 
and  wish  them  out  of  the  way  ? 

^L  No,  sir  ;  not  that  I  remember. 

Q.  Did  Cromwell  ever  flog  you,  or  curse 
ywii  I 

A.  No,  sir. 

BY    CAPTAIN    BOLTON. 

Q.  Have  you  ever  entertained  any  feelings 
of  hostility  against  Mr.  Spencer,  or  Crom- 
well, or  Small  ? 

A.  No,  sir. 

The  testimony  of  Samuel  Van  Norden 
here  closed,  his  evidence  was  read  to  him 
and  corrected  by  him. 

Henry  Corny  was  then  called,  and  being 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows. 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is-  your  name,  age,  your  rank? 
Were  you  on  board  the  Somers  during  her 
last  cruise  ? 

A.  My  name  is  Henry  Corny,  my  age 
fifteen  years.  I  was  on  board  the  Somers 
in  her  last  cruise  as  second  class  apprentice. 

Q.  Did  you  overhear  any  private  con- 
versation between  Mr.  Spencer  and  Small  ? 
if  so,  state  it. 

A.  I  heard  them  talking  in  some  kind  of 
language  that  I  did  not  understand.  I  heard 
Mr.  Spencer  ask  Small  how  a  brig  like  this 
would  do.  Small  said  that  it  would  do  very 
well,  but  they  would  have  to  carry  arms. 

Q.  Did  they  continue  the  conversation 
in  English,  or  did  they  go  on  again  to  speak 
in  a  foreign  language  ? 

A.  They  stopped  talking  in  English,  and 
went  on  in  a  foreign  language. 

Q.  Were  you  at  the  weather-main-royal- 
brace,  the  day  the  main-top-gallant-mast  was 


98 


PROCEEDINGS  OF  THE 


carried  away?  If  so,  state  who  was  there 
with  you,  and  all  that  occurred. 

A.  Small  was  with  me,  the  officer  of  the 
deck  said, "  A  small  pull  at  the  weather-main- 
royal  brace ;"  I  went  to  it,  and  Small  came 
too,  and  we  were  hauling  on  it,  and  the  offi- 
cer of  the  deck  said,  "  Belay,"  and  the  com- 
mander, too.  I  let  go,  and  Small  kept  haul- 
ing on  it ;  I  told  him  to  stop,  but  he  paid  no 
attention  ;  he  hauled  with  a  jerk  and  then 
belayed  it ;  about  five  minutes  after  the  mast 
carried  away. 

Q.  After  the  brace  was  belayed,  did  you 
go  away  or  remain  by  it  ? 

A.  I  went  away,  sir. 

Q.  In  what  direction  did  you  go  ?  How 
far  did  you  go  before  the  mast  went  ? 

A.  I  went  to  the  bitts.  I  got  there  before 
the  mast  was  carried  away. 

Q.  How  far  is  the  bitts  from  where  the 
brace  is  belayed  ? 

A.  Three  or  four  feet. 

Q.  How  was  the  order  to  belay  given  by 
the  officer  of  the  deck,  how  was  it  repeated 
by  the  commander — loud,  or  otherwise  ? 

A.  Loud. 

CROSS-EXAMINED    BY    JUDGE     ADVOCATE. 

Q.  Did  you  sit  down  on  the  bitts  after 
you  belayed  the  brace  ? 

A.  Yes,  sir. 

Q.  Who  was  by  you  then  ? 

A.  I  don't  recollect  who  was. 

Q.  Did  not  Small  go  to  the  bitts  then, 
also? 

A.  I  took  no  notice  where  he  did  go  ? 

Q.  Did  you  notice  his  going  off? 

A.  No,  sir. 

Q.  How  many  were  at  the  brace  with 
you? 

A.  Only  me  and  Small. 

Q.  Were  other  men  near  ? 

A.  Some  on  the  forecastle. 

Q.  Where  was  you  before  the  order  was 
given  to  take  a  pull  ? 

A.  I  was  at  the  bitts. 

Q.  Who  was  there  with  you  ? 

A.  Small  stood  alongside  of  the  bitts. 

Q.  Were  you  talking  to  Small  then  ? 

A.  No,  sir. 

Q.  How  near  was  Small  then  to  you, 
and  could  you  distinctly  observe  what  he 
was  doing  before  the  order  was  given  to 
take  a  pull  ? 

A.  He  was  standing  about  two  feet  off. 
I  did  not  notice  what  he  was  doing. 


Q.  Did  you  see  Cromwell  there  ? 

A.  No,  sir. 

Q.  Are  you  not  sure  Cromwell  was 
there  ? 

A.  Yes,  sir,  I  am  sure  he  was  not  the 

Q.  Did    you   soe    Cromwell   anywh 
about  there  ? 

A.  I  did  not  notice  him. 

Q.  Did  you  see  Van  Norden  ? 

A.  No,  sir. 

Q.  Did  you  see  Mr.  Oliver  Perry. 

A.  I  did  not  see  him  round  there  then 

Q.  Did  you  see  any  one  come  forwa 
and  tell  Mr.  Oliver  Perry  afterward  that  the 
commander  wanted  to  see  him  aft? 

A.  No,  sir,  I  did  not. 

Q.  Was  there  not  much  talk  in  the  b 
about  that  mast  being  carried  away? 

^4.  Yes,  sir,  I  believe  there  was. 

Q.  What  was  said  about  it  ? 

A.  They  were  talking  about  how  t 
mast  was  carried  away.  I  did  not  hear 
said  who  carried  it  away. 

Q.  Did  you  ever  tell  any  one  soon  after 
ward  that  Small  did  it  ? 

A.  No,  sir. 

Q.  While  you  were  sitting  on  the  bi 
after  the  brace  was  belayed,  did  you  look 
the  brace  ? 

A.  No,  sir.  I  did  not. 

Q.  Did  you  look  aloft  at  the  sky-sail  ? 

A.  Not  till  after  it  was  carried  away. 

Q.  Were  you  not  surprised  when  the  m 
went  ? 

A .  Yes,  sir. 


BY  CAPTAIN  STOKER. 


Q.  Was  the  main-sky-sail  set  -at  the  tii 
the  mast  was  carried  away. 
A.  Yes. 

BY    CAPTAIN    DOWNES. 

Q.  Why  were  you  surprised  that  the 
was  carried  away  ? 

A.  Because  I  did  not  know  how  it 
carried  away  ;  I  did  not  think  the  haul  or 
the  brace  had  done  it. 

BY    THE    JUDGE    ADVOCATE. 

Q.  You  say  you  never  told  any  one 
afterward,  that   Small  made    the   mast 
carried   away ;  have  you   ever  since    toli| 
any  one  that  he  did  ? 

A .  No  more  than  that  he  had  hold  of  thj 
brace  with  me. 

Q.  You  have  spoken  of  a  converse 


NAVAL  COURT  MARTIAL. 


99 


between  Mr.  Spencer  and  Small ;  when  did 
;  this  take  place  ? 

A.  After  we  left  Madeira. 
Q.  What  time  of  the  day  was  the  con- 
versation, and  in  what  part  of  the  ship  ? 
A.  In  the  evening,  a-sittirig  on  the  bitts. 

BY  CAPTAIN  WYMAN. 

Q.  How  fast  was  the  brig  going  at  the  time 
the  mast  was  carried  away,  and  how  many 
points  from  the  wind  was  the  brig  sailing  ? 

A.  I  don't  know  how  many  knots. 

Q.  Who  was  the  officer  forward  when  the 
mast  was  carried  away  ? 

A.  I  do  not  know  ;  Mr.  Hays  was  officer 
of  the  deck. 

Q.  Who  were  the  mastmen  of  the  fore- 
.  mast  ? 

A.  Houghland,  I  believe. 

Q.  Were  you  passing  by  or  sitting  near, 
when  Mr.  Spencor  and  Small  were  con- 
versing 1 

A.  I  was  sitting  along  side  of  Small,  on 
the  bitts. 

Q.  Was  any  one  else  near? 

A.  There  was  no  one  there  but  Mr.  Spen- 
,  cer  and  Small. 

Q.  Did  you  hear,  after  the  arrest,  any- 
thing of  the  papers  found  in  Mr.  Spencer's 
locker  ? 

A.  No,  sir,  I  don't  recollect ;  I  heard, 
after  he  was  executed,  how  they  had  found 
one  in  a  razor-case  ;  that  is  all  I  heard. 

Q.  Did  you  not  hear  what  sort  of  papers 
they  were — that  they  had  names  on  them  ? 

A.  No,  sir,  I  didn't. 

Q.  Was  it  said  that  those  papers  showed 
;  Mr.  Spencer's  plan  of  mutiny  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  anything  about  people 
being  stationed  at  the  wheel,  at  the  cabin, 
at  the  arm -chest,  and  so  on  ? 

A.  No,  sir,  I  did  not. 

Q.  Was  the  color  of  the  papers  talked 

\  n  •*•         * 

about  ? 

A.  I  don't  recollect  any  talk  about  it. 

Q.  Did  you  hear  anything  about  the  paper 
having  strange  characters  on  them  ? 

A.  I  heard  Newell  say  how  he  had  seen 
Cromwell  looking  over  a  paper  with  strange 
characters  on  it. 

Q.  When  did  you  hear  Newell  say  this  ? 

A.  Since  we  have  been  in  port — never 
before  heard  it  talked  about. 

Q.  After  the  execution,  and  before  your 
arrival  here,  did  you  hear  nothing  on  ship- 


board about  papers  with  strange  characters, 
which  were  found  in  Mr.  Spencer's  locker? 

A.  I  heard  there  was  a  paper  found  ; 
nothing  about  the  characters,  only  since  we 
got  into  port. 

Q.  Did  you  hear,  before  you  got  into 
port,  anything  about  geometrical  figures  be- 
ing on  the  back  of  one  of  the  papers  ? 

A.  Not  until  we  got  into  port,  when  I 
heard  Newell  say  about  that. 

Q.  Were  you  in  the  habit  of  talking  to 
Newell  on  shipboard,  before  your  arrival, 
about  this  mutiny  ? 

A.  No,  sir. 

Q.  Did  you  hear  much  talk  on  ship- 
board, about  the  Isle  of  Pines,  after  the 
arrest  ? 

A.  No,  sir. 

Q.  Did  you  know  Mr.  Spencer  well  ? 

A.  Yes,  sir  ;  we  were  in  different 
watches. 

BY  CAPTAIN    DOWNES. 

Q.  Do  you  mean  his  character  or  his 
face? 

A.  I  knew  him  by  sight. 

BY    COMMANDER    MACKENZIE. 

Q.  Which  side  of  the  bitts  were  you  sit- 
ting before  the  braces  were  hauled  on  ? 

A.  On  the  starboard  side. 

Q.  Were  not  the  greater  part  of  the  crew 
usually  about  the  foremast  and  forecastle,  in 
fine  weather  or  Sundays  ? 

A.  Yes,  sir. 

Q.  Might  not  Cromwell  have  been  seated 
on  the  other  side  of  Small,  on  the  forward 
side  of  the  bitts,  without  your  recollecting 
it? 

A.  I  don't  know  whether  or  not ;  I  can't 
say. 

'Q.  Did  Small  give  a  "  small  pull,"  as  you 
say  was  ordered,  or  did  he  haul  with  his 
whole  weight  ? 

A.  With  his  whole  weight  he  jerked  it. 

Q.  Did  he  thus  jerk  after  you  had  told 
him  the  order  had  been  given  to  belay  ? 

A.  Yes,  sir. 

Q.  After  you  had  belayed  the  brace  and 
reached  the  bitts,  how  long  were  you  sitting 
down  before  the  mast  went  ? 

A.  I  don't  know  how  long;  it  went  one 
or  two  minutes  after  I  reached  the  bitts. 

The  examination  of  Henry  Corny  here 
closed ;  his  evidence  was  read  to  him  and 
corrected  by  him. 

The  engagements  of  Mr.  Duer  not  allow- 


100 


PROCEEDINGS  OF  THE 


ing  his  longer  continuing  as  counsel  for  the 
accused,  he  was  relieved,  with  permission 
of  the  court,  by  Mr.  Theodore  Sedgwick. 
Ward  M.  Gagely  recalled. 

EXAMINED  BY  COMMANDER    MACKENZIE. 

Q.  Have  you  frequently  seen  Mr.  Spen- 
cer and  Cromwell  in  private  conversation  ? 

.4.  No,  sir. 

Q.  Have  you  ever  seen.  Mr.  Spencer  and 
Cromwell  talking  together  on  the  Jacob's 
ladder  1 

A.  No,  sir. 

Q.  Were  you  on  the  main-royal-yard  when 
the  maintop-gallaritmast  vsas  carried  away  ? 

A.  Yes,  sir. 

Q.  What  carried  away  the  mast  ? 

A.  A  pull  of  the  mainroyal-brace. 

Q.  What  became  of  you  when  the  mast 
went?  State  all  that  happened  to  you,. and 
how  you  saved  yourself. 

A.  I  caught  hold  of  the  royal-shroud  ;  I 
fell  on  the  belly  of  the  top-gallant-sail ;  I 
climbed  up  as  well  as  I  could  to  the  top- 
gallant-yard, and  slid  down  the  yard-rope. 

Q.  Were  you  near  going  overboard  ? 

A.  Yes,  sir. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  know  your  name  was  on  Mr. 
Spencer's  list  at  the  time  of  his  arrest  ? 

^4.  No,  sir. 

Q.  When  did  you  first  hear  it  was  there  ? 

A.  After  we  got  into  port. 

Q.  Did  Mr.  Spencer  ever,  talk  to  you 
about  taking  ehe  brig? 

A.  No,  sir. 

Q.  Did  you  ever  talk  to  Small  or,  Crom- 
well about  mutiny  or  taking  the  brig  ? 

A.  No,  sir. 

Q.  When  did  you  first  hear  of  the  papers 
found  in  Mr.  Spencer's  locker  ?  State  all 
you  heard  about  them. 

A.  I  never  heard  anything  about  them 
till  after  we  got  in. 

Q.  Did  you  hear  it  talked  about  afc  the 
time  of  Mr.  Spencer's  arrest,  as  to  what  he 
was  confined  for  ? 

A.  No,  sir — a  few  days  afterward. 

Q.  I  don't  ask  you  when  you  first  knew 
what  he  was  confined  for  ;  but,  before  the 
commander  told  the  crew,  was  there  any 
talk  about  Mr.  Spencer  fighting  with  Mr. 
Thompson  ? 

A.  No,  sir,  not  as  I  heard. 

Q.  Previous  to  the  execution,  did  you 
hear  any  one  talk  of  rescuing  the  prisoners  ? 


A.  No,  sir. 

The   examination  of  Ward   M.   Gagely 
here  closed ;  his  evidence  was  read  to  hi 
and  corrected  by  him. 

Jonas  E.  S.  Humbert,  being  called  a 
duly  sworn  by  the  president  of  the  cou 
testified  as  follows  : — 

EXAMINED  BY  COMMANDER    MACKENZIE. 

Q.  What  is  your  name  ?  your  age  ?  yc 
rank  ?  were  you  on  board  of  the  Som< 
during  her  last,  cruise  ? 

A.  My  name  is   Jonas  E.  S.  Humbei 
my  age  sixteen  years ;  I  was  on  board 
the  Somers  in  her  last  cruise  as  third-ch 
apprentice. 

Q.  Have  you  ever  known  Mr.  Spen< 
give  Cromwell  liquor  ? 

A.  Yes,  sir :  one  morning  Mr.  Spem 
came  forward,  and  Cromwell  was  sitting 
the  forehatch  ;  Mr.  Spencer  asked  Cror 
well  if  he  would  like  to  have  something 
drink,  Cromwell  said  he  would;  Mr.  Spen- 
cer went  aft  and  beckoned  to  him,  and 
Cromwell  followed  him  ;  Cromwell  stopped 
at  the  mainmast,  Mr.  Spencer  went  below 
in  the  steerage  ;  Mr.  Spencer  put  his  head! 
above  the  hatch,  and  looked  round  to  see 
if  the  officer  of  the  deck  was  aft;  Mr.[ 
Spencer  gave  Cromwell  a  cup,  Cromwell  I 
drank  something  out  of  it;  when  he  gavel 
him  the  cup,  Mr.  Spencer  was  intoxicated 
at  the  time  ;  Cromwell  came  forward,  Mr.) 
Spencer  followed  him  ;  Mr.  Spencer  asked 
Cromwell  if  it  was  good,  Cromwell  said-,j 
"  Yes  ;"  they  piped  to  breakfast,  and  I  went! 
below. 

Q.  Did  Cromwell  ask  Mr.  Spencer  where| 
he  got  the  liquor  ? 

A.  No,  sir,  not  that  I  know  of. 

Q.  Have  you  ever  seen  Mr.  Spencer  in| 
conversation  with  Cromwell  ?  if  so,  state; 
what  passed. 

A.  One  time  Mr.  Spencer  and  Cromwell 
were  sitting  on  the  forehatch  ;  Mr.  Spencei 
asked  Cromwell  what  kind  of  a  piratical 
vessel  he  thought  the  brig  would  make  ;| 
Cromwell  said  he  thought  she  would  make 
a  very  good  one — she  was  a  fast  sailer — buti 
if  he  had  anything  to  do  with  her  he  would 
throw  the  launch  overboard  :  I  saw  them! 
talking  another  time ;  they  were  sitting  on 
the  forecastle  chest ;  Mr.  Rogers  was  offi-i 
cer  of  the  deck  at  the  time :  Mr.  Rogers] 
gave  the  order  to  haul  in  the  braces  and| 
square  the  afteryards ;  neither  Mr.  Spencer 


NAVAL  COURT  MARTIAL. 


101 


nor  Cromwell  seemed  to  take  any  notice  of 
it:  it  was  their  watch;  Mr.  Rogers  came 
forward  and  gave  the  order  again ;  they 
then  got  up  and  had  the  yards  squared  ; 
when  they  were  done,  they  went  and  sat  on 
the  chest  again  ;  then  Cromwell  said  to 
Mr.  Spencer,  "  I  wish  the  yards,  braces, 
and  all,  were  in  hell ;"  Mr.  Spencer  told 
him  not  to  say  that,  that  they  would  have 
some  fun  with  the  brig  yet ;  then  Mr.  Spen- 
cer asked  Cromwell  for  a  chew  of  tobacco, 
and  then  went  off. 

Q.  Have  you  ever  heard  Mr.  Spencer 
speak  disrespectfully  of  the  commander  1 

A.  Yes,  sir  ;  he  said,  "  God  damn  him," 
that  he  was  "  nothing  but  a  damned  old 
humbug." 

Q.  Did  you  ever  hear  any  conversation 
between  Mr.  Spencer  and  M'Kee  ?  if  so, 
state  what  passed. 

A.  M'Kee  was  sitting  on  the  forescuttle  ; 
Mr.  Spencer  came  up  to  him  and  asked 
him  if  he  could  cut  out  clothes  and  sew 
1  them,  M;Kee  said  he  could  ;  Mr.  Spencer 
'\  asked  him  how  he  would  like  to  go  to  sea 
with  him  ;  M'Kee  said  he  would  like  it 
very  well  ;  Mr.  Spencer  told  him  he  would 
not  have  to  cut  any  winter  clothes,  because 
he  was  going  to  a  warm  place  ;  then  M'Kee 
asked  him  for  a  chew  of  tobacco,  and  he 
gave  him  a  piece  as  large  as  my  hand. 

Q.  After  the  arrest  of  Mr.  Spencer,  did 
you  notice  anything  remarkable  in  the  con- 
duct-of  C.  A.  Wilson,  the  sailmaker'^5  mate? 

A.  Yes,  sir:  one  day  I  was  using  an 
African  dirk  that  Wilson  had  ;  he  took  it 
':  out  of  rny  hands,  and  I  asked  him  why ;  he 
said  it  would  cut  my  throat  as  quick  as  look 
at  it,  and  then  he  said  he  would  like  to  put 
it  into  Mr.  Spencer's  hands. 

Q.  Did  you  ever  hear  Wilson  speak  dis- 
respectfully of  any  of  the  officers  ? 

A.  No  more  than  I  heard  him  say  he 
would  have  revenge  out  of  Mr.  Thompson 
and  out  of  the  commander  for  flogging  him. 

Q.  What  was  Wilson  flogged  for? 

A.  Striking  a  boy. 

Q.  Is  Wilson  little  or  big? 

A.  A  large  stout  man. 

Q.  Have  you  ever  heard  him  menace 
any  of  the  crew  ? 

A.  No,  sir. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Was  Cromwell  a  passionate  man  ? 
A.  Yes,  sir. 


Q.  Did  he  swear  at  the  men  and  boys 
pretty  hard  ? 

A.  Yes,  sir. 

Q.  Has  he  not  told  you  often  he  would 
thrash  you  ? 

A.  No,  sir,  not  that  I  remember. 

Q.  Were  you  afraid  of  him  ? 

A.  No,  sir. 

Q.  Would  you  have  been  afraid  to  have 
gone  to  St.  Thomas  with  the  prisoners  ? 

A.  Yes,  sir. 

Q.  The  morning  Mr.  Spencer  gave  Crom- 
well the  liq«or,  how  long  did  you  see  Mr. 
Spencer  before  he  asked  Cromwell  if  he 
wanted  liquor? 

A.  He  had  just  come  up  out  of  the  steer- 
age. 

Q.  How  long  was  it  after  he  gave  Crom- 
well the  liquor  that  you  saw  Mr.  Spencer 
again  ? 

A.  Not  before  that  night. 

Q.  What  part  of  the  cruise  was  this  ? 

A.  When  we  were  going  to  Mesurado 
from  Madeira. 

Q.  How  do  you  know  Mr.  Spencer  was 
intoxicated  ? 

A,  I  could  see  it  on  to  him,  his  face  was 
red  and  he  could  not  walk  straight. 

Q.  Did  he  talk  thick  ? 

A.  Yes,  sir. 

Q.  Did  he  stagger  much? 

A.  Yes,  sir. 

Q.  Might  not  that  have  been  from  the 
roll  of  the  brig?  was  it  calm,  or  otherwise  ? 

A.  It  was  calm  ;  it  could  not  have  been 
from  the  rolling  of  the  brig,  she  was  not 
rolling. 

The  examination  of  Jonas  E.  S.  Humbert 
was  here  suspended  ;  his  evidence  was  read 
to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Saturday),  Feb.  25,  at  10  o'clock,  A.M. 


NAVY  YARD,        > 
Brooklyn,  Feb.  25,  1843,  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read, 
"       Bolton, 


"       Turner, 
«       Sloat, 
"       Storer, 


Page, 

"        Gwinn, 
"        Wyman, 
Com'dr  Ogden, 
"        Shubrick, 
Members ; 


102 


PROCEEDINGS  OF  THE 


Wm.  II .  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Captain  Smith  sent  the  following  certi- 
ficate, which  was  read  by  the  judge  advo- 
cate : — 

"  U.  S.  NAVY  YARD,      ) 
"Brooklyn,  Feb.  25,1843.  J 
"This  is  to  certify,  that  Captain  Joseph 
Smith  is  too  much  indisposed  to  attend  the 
naval  court  martial  this  day. 
"  Respectfully, 

"JOHN  HASLETT,  Surgeon. 
"  To  the  President  of  the  Naval  Court  Mar- 
tial, Brooklyn  navy  yard." 

Jonas  E.  S.  Humbert  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  After  Cromwell  got  the  liquor,  do  you 
say  they  piped  to  breakfast  ? 

A.  Yes,  sir. 

Q.  Was  it  clear  good  weather  then  ? 

A.  It  had  been  raining  that  morning. 

Q.  Who  was  Cromwell  with  when  Mr. 
Spencer  called  him  to  get  the  liquor  ? 

A.  He  was  alone — sitting  alone  on  the 
forehatch. 

Q.  At  that  hour  of  the  morning,  are  there 
not  many  of  the  crew  on  deck  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  any  of  the  crew  speak 
of  Mr.  Spencer's  being  drunk  on  that  occa- 
sion? 

A.  No,  sir. 

Q.  Did  you  ever  speak  about  it  before 
your  arrival  here  ? 

A.  No,  sir. 

Q.  Did  you  ever  tell  any  one,  before  your 
arrival  here,  of  having  seen  Mr.  Spencer 
call  Cromwell,  to  give  him  the  liquor  ? 

A.  No,  sir. 

Q.  Did  you,  before  the  court  of  inquiry, 
say  anything  about  Mr.  Spencer  being  drunk, 
at  this  time  ? 

.4.  No,  sir. 

Q.  Whom  did  you  first  tell  of  this  liquor 
affair,  after  you  got  here  ? 

A.  Mr.  Gansevoort. 

Q.  How  came  you  to  tell  him  ? 

.A.  He  asked  me  in  the  ward-room  what 
I  knew  about  the  affair. 

Q.  When  you  were  in  the  ward-room, 
was  it  known  through  the  papers  here,  about 
Mr.  Spencer's  papers  and  plan  of  mutiny  ? 


A.  No,  sir. 

Q.  Had  not  Commander  Mackenzie's 
port  been  then  published  ? 

A.  No,  sir,  I  believe  not. 

Q.  How  long  was  it  after  you  had  be' 
in  port  ? 

A.  About  two  weeks,  I  should  think  ; 
can't  say  exactly. 

Q.  How  long  was  it  before  the  court 
inquiry  began  ? 

A.  About  a  week. 

Q.  Was  Commander  Mackenzie's  re 
read  on  shipboard  and  talked  of  1 

A.  No,  sir,  I  believe  not. 

Q.  Did  you  see  Cromwell  hung  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  what  he  said  just  bef( 
he  was  hung  ? 

A.  He  told  Mr.   Gansevoort  to  tell 
wife  that  he  was  innocent. 

Q.  Had  you  not   heard  Wales's   stat 
ment,  that  it  was    Mr.   Spencer's  plan 
throw  the  launch  overboard  when  he  too! 
the  brig,  before  your  arrival. 

A.  No,  sir. 

Q.  When  did  you  first  tell  of  the  conver- 
sation between  Cromwell  and  Mr.  Spencer, 
about  the  Somers  as  a  piratical  vessel,  and 
about  the  launch  being  thrown  overboard  ? 

A.  Two  or  three  days  ago,  to  Mr.  Perry, 
in  the  ward-room. 

Q.  Two  or  three  days  ago,  had  you  heard 
anything  of  Wales's  statement,  that  it  was 
Mr.  Spencer's  plan  to  throw  the  launch 
overboard  ? 

A.  No,  sir. 

Q.  Why  did  you  not  tell  of  this  conver- 
sation about  the  launch  when  you  were 
swoni  before  the  court  of  inquiry  ? 

.A.  I  did  not  think  of  it. 

Q.  What  time  of  day  was  it,  and  in  what 
part  of  the  ship  did  this  conversation,  about 
the  Somers  making  a  piratical  vessel,  t; 
place,  and  in  what  part  of  the  cruise  ? 

A.  About  10  o'clock  in  the  forenoon r 
the  starboard  side  of  the  fore-hatch,  betwe< 
Madeira  and  Mesurado. 

Q.  What  sort  of  weather  was  it  then  ? 

A.  Good  weather. 

Q.  Was  there  nobody  by  ? 

A.  Not  that  I  took  notice  of. 

Q.  What  was  you  doing  at  this  time  ? 

A.  Coiling  up  the  maintop-gallant-brac 

Q.  Was  anybody  but  Mr.  Spencer  near, 
the  time  of  the  conversation,  when  Cromw 
wished  the  yard,  braces,  and  all  in  hell  ? 


NAVAL  COURT  MARTIAL. 


103 


A.  No,  sir — only  himself. 

Q.  Did  you  take  particular  notice  that 
nobody  was  by  ? 

A.  Yes,  sir. 

Q.  Why  did  you  take  particular  notice  ? 

A.  I  don't  know  why. 

Q.  Had  you  ever  been  talked  to  by  Mr. 
Spencer,  Cromwell,  or  Small,  about  the 
mutiny  ? 

A.  No,  sir. 

Q.  When  did  you  first  tell  of  this  cursing 
of  the  yard  and  braces  ? 

A.  To  Mr.  Cansevoort,  in  the  ward-room, 
after  we  got  here. 

Q.  You  say  that  no  persons  were  near 
Mr.  Spencer  and  Cromwell ;  how  far  was 
the  nearest  person  at  the  time  ? 

A .  About  fourteen  feet  when  talking  about 
the  braces  ;  people  were  about  six  feet  ofT 
when  they  were  talking  about  the  other 
things. 

Q.  Did  Cromwell  appear  to  be  quite  mad 
when  he  was  cursing  the  yard  and  braces  ? 

A.  Yes,  sir. 

Q.  Did  he  move  his  body  about,  as  if 
he  was  much  provoked  ? 

A.  He  did  not  seem  to  move  his  body 
about  more  than  he  commonly  did. 

Q.  How  then  did  you  judge  he  was  quite 
mad  ? 

A.  By  the  tone  of  his  voice. 

BY    CAPTAIN    OGDEN. 

Q.  When  Cromwell  was  cursing  the  yards 
and  braces,  you  say  he  was  in  a  passion. 
Had  he  been  in  a  passion  before  the  order 
was  given  to  haul  in  the  braces,  or  was  it 
the  order  itself  that  seemed  to  make  him 
angry  ? 

A.  It  was  the  order  itself. 

BY  THE  JUDGE  ADVOCATE. 

Q.  What  was  Mr.  Spencer's  manner 
when  he  said,  "  Don't  say  that — we'll  have 
some  fun  out  of  her  yet  ?" 

A.  He  was  laughing. 

Q.  Do  you  remember  when  the  rush  aft 
took  place,  on  the  27th,  the  evening  of  the 
mast  accident  ? 

A.  Yes,  sir  ;  I  was  forward  on  the  fore- 
castle. 

Q.  Was  you  lying  down  there  ? 

A.  Yes,  sir. 

Q.  About  how  many  people  were  lying 
down  there  then  ? 


A.  About  five  or  six,  and  the  biggest  part 
of  the  crew  standing  around. 

Q.  Did  Browning  come  in  among  them 
with  his  colt  ? 

A.  Yes,  sir. 

Q.  What  did  Browning  do  and  say  then  ? 

.A.  He  flourished  his  colt  about,  told  them 
to  go  aft  and  take  hold  of  the  top-gallantmast 
rope. 

Q.  What  did  the  men  and  boys  do  then  ? 

A.  They  went  aft  with  a  great  deal  of 
noise. 

Q.  Was  there  or  not  any  scrambling  and 
pushing  to  get  out  of  the  way  of  the  colt  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  what  Lieutenant  Ganse- 
voort  said  then  \ 

A.  No,  sir. 

Q.  Did  you  hear  what  Mr.  Rogers  said 
then  ? 

A.  No,  sir. 

Q.  How  near  were  you  to  the  trunk 
when  the  prisoners  were  about  to  be  hung  ? 

A.  About  four  feet  from  the  trunk. 

Q.  Did  you  see  Lieut.  Gansevoort  then  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  the  order  to  "  stand  by 
fire  ?" 

A.  Yes,  sir. 

Q.  WTho  gave  that  order  ? 

A.  The  commander. 

Q.  How  was  Mr.  Spencer  brought  for- 
ward to  the  gangway  ?  Who  had  hold  of 
him  ? 

A.  Mr.  Gansevoort,  I  believe. 

Q.  Were  the  feet-irons  then  on  Mr. 
Spencer  and  the  others,  as  they  were 
brought  forward  ? 

A.  Yes,  sir. 

Q.  Did  or  not  this  make  them  hobble 
forward  slowly  ? 

A.  Yes,  sir. 

BY  COMMANDER  SHUBRICK. 

Q.  How  far  had  they  to  go  from  the 
place  of  their  confinement  to  the  place  of 
execution  ? 

A.  About  sixteen  or  seventeen  feet. 

Q.  After  the  execution,  did  you  of  morn- 
ings see  persons  take  the  remaining  prison- 
ers' water  to  wash  ? 

A.  Yes,  sir ;  and  clean  clothes. 

Q.  Did  you  before  the  execution  see  Mr. 
Spencer,  Cromwell,  or  Small,  wash  or  put 
on  clean  clothes  ? 

A.  Yes,  sir. 


104 


PROCEEDINGS  OF  THE 


Q.  What  time  of  the  day  did  you  notice 
the  executed  persons  change  their  clothes  ? 

A.  In  the  forenoon. 

Q.  During  the  arrest  of  the  executed 
persons,  did  you  hear  any  one  speak  about 
rescuing  them  ? 

A.   No,  sir. 

Q.  When  Waltham  was  flogged  last,  did 
you  hear  the  commander's  speech  to  the 
crew  ? 

A.   Yes,  sir. 

Q.  What  did  he  tell  them  ? 

A.  He  told  them  about  Mr.  Spencer's 
trying  to  get  up  a  mutiny  on  board. 

Q.  What  did  he  say  (if  he  said  any- 
thing) he  was  going  to  do  with  the  prison- 
ers ? 

A.  I  did  not  hear  him  say  anything  of 
what  he  was  going  to  do  with  them. 

Q.  Did  you  or  not  hear  anything  said 
then  as  to  taking  them  to  the  United  States 
to  be  tried  ? 

A.  Not  that  I  remember. 

Q.  Was  you  on  deck  when  the  top-gal- 
lant-mast was  carried  away  ? 

A.  No,  sir. 

Q.  Just  before  the  execution,  did  you  or 
not  hear  Lieutenant  Gansevoort  talking  to 
the  petty  officers  as  to  Cromwell's  inno- 
cence ? 

A.  No,  sir. 

BY  COMMANDER  MACKENZIE. 

Q.  Is  this  the  knife  of  Wilson,  which  he 
told  you  not  to  touch  ? 

A.  Yes,  sir. 

Q.  Do  you  distinctly  remember  whether 
the  prisoners  brought  home  in  irons  shifted 
themselves  in  the  morning,  as  you  say,  or 
whether  they  were  at  stated  periods  wash- 
ed, shaved,  combed,  or  otherwise  made 
clean  and  comfortable  in  the  heat  of  the 
day  by  the  ship's  barber  ? 

A.  They  were  washed  and  shaved  at 
different  times  by  the  ship's  barber. 

Q.  The  judge  advocate  has  asked  you 
whether  Cromwell  had  threatened  to  thrash 
you.  Were  you  stationed  aft  or  forward  ? 
Had  you  or  had  you  not  anything  to  do  with 
Cromwell  in  the  way  of  duty  ? 

A.  I  was  stationed  aft;  I  had  nothing  to 
do  with  Cromwell. 

Q.  Charge  your  memory,  and  say  wheth- 
er, when  Cromwell  told  Mr.  Spencer  he 
would  throw  the  launch  overboard,  as  a 
necessary  means  of  fitting  the  Somers  into 


a  good  piratical  vessel,  he  also  said  anything 
of  further  cleaning  the  decks  ? 

A.  No,  sir. 

Q.  Charge  your  memory  and  say,  di< 
you  or  did  you  not  hear  him  say  anything 
about  cutting  away  the  gallows  and  throw- 
ing overboard  the  spare  spars  and  spar 
rigging  ? 

A.  No,  sir. 

BY  COMMANDER    OGDEN. 

Q.  You  say  that  Browning  went  amonj 
the  men  on  the  forecastle  with  his  colt 
send  them  aft.     Had  the  men  been  orden 
aft  before  this,  and  did  they  obey  ? 

A.  They  had  been  ordered  aft,  and  die 
not  obey. 

Q.  What  was  the  Idnd  of  noise  the  mei 
made  when  they  went  aft  ? 

A.  Stamping  their  feet. 

- 

BY    THE    JUDGE    ADVOCATE. 

Q.  Did  they  then  laugh  and  speak  loudly 
to  each  other  ? 
A.  Yes,  sir. 

BY  CAPTAIN  SLOAT. 

Q  Had  you  ever  heard  them  make  a 
similar  noise  and  movement  before  1 

A.  No,  sir;  I  don't  know  that  I  ever 
have. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Do  you  know  where  Wilson  got  this 
knife  ? 

A.  He  said  he  got  it  from  M'Kinley. 

Q.  Do  you  know  when  the  knife  was  first 
brought  aboard  ? 

A,  No,  sir. 

Q.  Long  before  the  arrest,  had  you  not  | 
heard  that  Purser  Heiskill  bought  that  knife 
or  dirk  on  the  coast  of  Africa,  and  gave 
to  M'Kinley? 

A.  No,  sir. 

Q.  Where  was  Wilson  at   in   the    si 
when  he  had  this  talk  with  you  about  the 
knife  ? 

A.  On  the  quarter-deck. 

Q.  Was  he  not  using  the  knife  in  mend- 
ing sails,  or  cutting  ropes  ? 

A.  No,  sir. 

Q.  Have  you  not  often  seen  him  usinj 
this  knife  in  his  work  ? 

A.  No,  sir. 

Q.  At  the  time  of  the  talk  was  the 
or  dirk  lying  alongside  Wilson  ? 


NAVAL  COURT  MARTIAL. 


105 


A.  He  took  it  out  of  ray  hand  and  laid  it 
alongside  of  him.  I  took  it  out  of  the  sail- 
bag  first. 

Q.  Did  he  look  at  you  very  fierce  when 
he  told  you  it  would  cut  your  throat  ? 

A.  Yes,  sir. 

Q.  Did  you  leave  his  bag  alone  then  1 

A.  Yes,  sir. 

Q.  How  near  was  Wilson  to  Mr.  Spen- 
cer then  ? 

A.  About  four  or  five  feet  from  him. 

Q.  Did  Wilson  seem  mad  with  you  ? 

A.  No,  sir. 

Q.  How  was  it  then  that  he  looked  fierce 
at  you  ? 

A.  He  did  not  wish  me  to  use  it ;  he  had 
just  sharpened  it. 

•Q.  Did  Wilson  speak  quick  -and  gruff  to 
you  ? 

A.  No,  sir. 

Q.  Did  Wilson  speak  loud  enough  for 
Mr.  Spencer  to  hear  him  ? 

A.  Yes,  sir. 

Q.  Who  was  Mr.  Spencer's  guard  then? 

A.  The  master-at-arms,  I  believe. 

'Q.  Where  was  he  then  ? 

A.  On  the  starboard  side  of  the  quarter- 
deck. 

Q.  How  long  was  this  after  Mr.  "Spencer 
•was  arrested  ? 

A.  Next  morning. 

Q.  What  time  of  day  next  morning 
was  it  ? 

A.  Between  10  and  11  o'clock. 

Q.  Are  you  sure  it  was  next  morning? 
-and  if  so,  why  ? 

A.  Mr.  Spencer  was  confined  in  the 
evening,  and  jt  was  the  next  morning. 

Q.  Why  do  you  know  it  was  between  10 
and  11  o'clock? 

A.  We  used  to  work  with  him  between  10 
and  1 1 ;  I  belonged  to  the  sailmaker'-s  gang. 

Q.  Who  used  to  work  with  you  ? 

A.  Charles  Sibley,  Henry  Strummel,  and 
Thomas  Bowen. 

Q.  When  did  you  first  tell  of  this  conver- 
fiation  about  the  dirk  ? 

A.  Aboard  the  Somers,  to  Mr.  Ganse- 
voort  in  the  wardroom,  after  we  got  here. 

Q.  Why  did  you  not  speak  of  it  before  ? 

A  I  was  never  asked  before. 

Q.  How  long  had  you  been  at  work  when 
this  conversation  took  place  ? 

A.  A  quarter  of  an  hour. 

Q.  Where  were  Sibley,  Strummel,  and 
Bowen,  at  the  time,  who  worked  with  you  ? 
14 


A.  They  were  sitting  alongside  of  me. 

Q.  Describe  the  knife  by  measure. 

A.  From  the  end  of  the  handle  to  the 
point  one  foot,  blade  scant  seven  inches, 
tapering  to  a  point  dirk  wise,  one  and  one 
third  inches  broad  at  the  hilt,  and  rawhide 
scabbard. 

BY    COMMANDER    MACKENZIE. 

Q.  Do  you  call  that  a  knife  or  a  dagger  ? 

A.  A  dagger. 

Q.  Were  other  similar  African  daggers 
brought  on  board  the  Somers  at  Liberia  ? 

A.  I  don't  know ;  I  did  not  see  any 
others. 

Q.  Is  that  a  good  instrument  to  split  can- 
vass, or  cut  rope  ? 

A.  No,  sir. 

Q.  Did  Wilson  use  the  dagger  for  such 
purposes,  or  did  he  always  have  with  him  a 
sailmaker's  knife,  similar  to  a  shoemaker's 
knife,  to  use  in  his  work  ? 

A.  No,  sir ;  he  always  had  a  sailmaker's 
knife  which  he  used  in  his  work. 

The  testimony  of  Jonas  E.  S.  Humbert 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

James  B.  Travis  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  your  age,  your 
rank  ?  Were  you  on  board  of  the  Somers 
during  her  last  cruise  ? 

A.  My  name  James  B.  Travis,  my  age 
fourteen  years ;  I  was  on  board  of  the  Som- 
ers in  her  last  cruise  as  third  class  boy. 

Q.  Did  you  ever  use  Wilson's  dirk  ? 

A.  Yes,  sir ;  the  dirk  shown  me  is  the 
one. 

Q.  Did  he  ever  afterward  refuse  to  allow 
you  to  use  it  ? 

A.  Yes,  sir  ;  I  was  using  it,  and  he  told 
me  to  put  it  down  ;  I  asked  him  why  he 
was  so  afraid  of  his  knife  ;  he  said  it  was 
none  of  my  business  ;  he  said  that  knife 
had  to  do  a  great  deal  of  slaughtering  some 
of  these  days,  and  said  he  was  going  to 
sharpen  it  that  night  more. 

Q.  Did  you  ever  know  Wilson  to  threaten 
to  take  the  life  of  the  commander,  or  any 
one  else  on  board  the  Somers  ? 

Upon  objection  being  made  to  the  ques- 
tion by  the  judge  advocate,  the  court  was 
cleared,  and  decided  that  the  question  could 
not  be  put  in  its  present  form. 


106 


PROCEEDINGS  OF  THE 


BY  THE  COURT. 

Q.  Did  you  ever  know  Wilson  to  threaten 
to  take  the  life  of  the  commander,  or  any 
one  else,  on  board  the  Somers,  during  her 
late  cruise,  previously  to  the  execution  of 
the  prisoners  ? 

A.  I  heard  him  say,  he  would  take  the 
lives  of  two  boys,  Weaver  and  Tyson,  the 
first  chance  he  got ;  this  was  about  four 
days  before  the  arrest  of  Mr.  Spencer. 

The  judge  advocate  objected  to  the  gen- 
erality of  that  part  of  the  question,  "  or  any 
one  else,"  as  illegal,  as  allowing,  in  a  man- 
ner, to  show  the  general  bad  character  of 
Wilson,  in  a  manner  not  connected  with  the 
mutiny,  and  so  as  to  admit  the  mere  private 
brawls  of  Wilson. 

BY  COMMANDER  MACKENZIE. 

Q.  Have  you  ever  seen  Mr.  Spencer, 
Cromwell,  and  Small,  talking  together  in  a 
low  tone  ? 

A.  Yes,  sir. 

BY  THE    JUDGE  ADVOCATE. 

Q.  You  say  you  had  used  Wilson's  dirk, 
what  have  you  used  it  for  ? 

A.  For  cutting  twine,  when  I  was  sew- 
ing hammocks. 

Q.  What  did  Wilson  use  this  dirk  about  ? 

A.  Cutting  twine  was  all  I  ever  saw  him 
use  it  for. 

Q.  How  often  have  you  seen  Wilson 
cutting  twine  with  it  ? 

A.  I  can't  tell ;  I  have  seen  him  use  it  a 
great  many  times  for  that  purpose. 

Q.  When  was  this,  that  Wilson  had  this 
conversation  with  you  ? 

A.  About  four  or  five  days  before  the  ar- 
rest of  Mr.  Spencer. 

Q.  Whereabouts  in  the  ship  ? 

A.  Aft,  on  the  quarter-deck. 

Q.  How  came  you  with  him  there  ? 

A.  Commander  Mackenzie  set  two  boys 
to  work  with  him;  the  one  who-  had  the 
watch  below  went  to  school,  and  I  worked 
with  him. 

Q.  Did  you  put  down  the  dirk  imme- 
diately after  his  telling  you  it  had  a  great 
deal  of  slaughtering  to  do  ? 

A.  Yes,  sir. 

Q.  Were  you  frightened,  when  he  told 
you  this  ? 

A.  No,  sir. 

Q.  When  did  you  first  tell  about  this  ? 

A.  At  the  court  of  inquiry. 


Q.  Had  you  not  told  it  to  any  of  the 
cers  of  the  Somers,  before  you  went  to 
court  of  inquiry  ? 

A.  No,  sir. 

Q.  Did  you  not  hear  a  great  deal  of  tc 
after  the  arrest  of  Mr.  Spencer,  about  Wi 
son  being  in  a  mutiny  with  him  ? 

A.  Yes,  sir. 

Q.  Why  is  it  you  did  not  tell  about 
conversation,  before  you  got  here  ? 

A.  I  thought  I  would  wait  until  they 
for  me. 

Q.  Why  did  you  not  tell  some  of 
boys,  or  men,  you  did  not  expect  them 
send  for  you  ? 

A.  I  told  some  of  the  boys. 

Q.  When  did  you  tell  the  boys  ? 

A.  Right  after  Wilson  was  put  in  irons 

Q.  Whom  did  you  tell  ? 

A.  I  told  Browning,  and  Anderson,  ai 
Tyson,  and  Weaver. 

Q.  Did  you  not  think,  at  the  time  Wih 
was  talking  to  you,  that  he  only  wanted  yc 
to  put  down  his  knife  ? 

A.  Yes,  sir;  that  is  all  I  thought  it  was, 

Q.  Have  you  worked   ofteh  with  Wil 
son  ? 

A.  No,  sir;  not  very  often. 

Q.  Has  he  never  threatened  to  cut  y( 
throat,  or  anything  of  that  kind,  either 
earnest  or  in  fun  ? 

A.  No,  sir;  only  the  two  boys,  I  tok 
you. 

Q.  What  was  Wilson  mad  with  Weave 
and  Tyson  about  ? 

A.  Because  he  got  whipped  for  striking 
them. 

Q.  Was  it  immediately  after  being  whij 
ped  for  that,  that  he  threatened  them  ? 

A.  Yes,  sir;  about  five  or  ten  miimt 
after.  , 

Q.  Was  Wilson  a  passionate  fellow  ? 

A.  Yes,  sir. 

Q.  Would  Wilson  often  talk  large  to  the 
boys,  as  to  what  he  would  do  to  them  ? 

A.  No,  sir. 

Q.  Do  you   know   what  Wilson  strucl 
Weaver  and  Tyson  about  ? 

A.  No,  sir. 

Q.  How  long  after  he  struck  them,  was! 
Wilson  whipped  for  it  ?  who  reported  him  ? 

A.  About  ten  or  twelve  minutes ;  the  of-| 
ficer  of  the  deck  reported  him. 

The  examination  of  James  B.  Travis 
here  closed ;  his  evidence  was  read  to 
and  corrected  by  him. 


NAVAL  COURT  MARTIAL. 


107 


The  Court  then  adjourned  until  Monday, 
Feb.  27,  at  11  o'clock,  A.  M. 


NAVY  YARD,  > 

Brooklyn,  Feb.  27,  1843,  ] 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

"       Bolton,  "        Gwinn, 

Turner,  "        Wymari, 

"       Sloat,  Com'dr  Ogden, 

Storer,  "        Shubrick, 

Members  ; 

W.  H.  Nbrris,  Esq.r  of  Baltimore,  Judg'e 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

Captain  Smith,  having  recovered  this 
norning,  the  court  was  cleared,  and  on  the 
opening  thereof,  the  judge  advocate  an- 
lounced  that  the  court  had  decided  that  on 
account  of  the  absence  by  sickness  of  Cap- 
tain Smith,  for  the  last  three  sitting  days  of 
the  court,  that  he  should  be  excused  from 
further  attendance  as  a  member,  during  this 
trial. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

William  Inglis  was  then  called,  and  being 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  ager  and  rank? 
were  you  on  board  the  Somers  in  her  last 
cruise  ? 

A.  My  name  Wm.  Inglis ;  my  age  sev- 
enteen ;  I  was  2d  class  boy  on  board  of  the 
Somers,  in  her  last  cruise  ? 

Q.  Have  you  ever  seen  Cromwell  and 
Small  in  private  conversation  ? 

A.  No,  sir. 

Q.  Have  you  ever  seen  Mr.  Spencer  and 
Cromwell  in  private  conversation  ? 

A.  Yes,  sir;  I  saw  them  sitting,  Crom- 
well on  the  forecastle,  and  Mr.  Spencer  on 
the  forecastle  chest ;  I  saw  Mr.  Spencer 
show  Cromwell  a  paper,  looking  at  the 
crew  and  then  showing  it  to  Cromwell,  as 
if  he  was  writing  names.  I  have  heard 
Mr.  Spencer  say  to  Cromwell,  that  the  brig 
would  make  a  fine  pirate  ;  Cromwell  said, 
"  Yes,  sir  ;  by  clearing  the  decks  of  the 
boats." 

Q.  Did  Cromwell   say  anything,  when 


Mr.  Spencer  looked  round,  and  commenced 
writing  down  what  you  thought  to  be  names  ? 

A.  He  said,  "  Yes,  sir." 

Q.  When  you  looked  at  the  paper,  on 
which  Mr.  Spencer  and  Cromwell  were 
consulting,  what  was  Mr.  Spencer's  man- 
ner ?  what  did  he  say  to  you  ? 

A.  He  got  up  and  shook  his  fist  at  me, 
called  me  "  a  son  of  a  bitch,"  and  said  if  I 
looked  at  him  again ^  he  would  get  me  to 
the  gangway,  and  give  me  a  flogging. 

Q.  Look  at  the  papers  now  shown  you, 
arid  say  if  either  of  them  is  the  one  on 
which  Mr.  Spencer  was  then  writing  ? 

A.  It  was  something  of  the  same  size 
as  No.  1,  but  it  only  had  writing  on  one 
side. 

Q.  When  you  were  examined  before  the 
court  of  inquiry,  did  you  not  then  see  the 
paper,  which  you  supposed  to  be  the  one  on 
which  Mr.  Spencer  was  then  writing  ? 

This  question  being  objected  to  by  the 
judge  advocate,  the  court  was  cleared,  and 
on  the  opening  thereof,  the  judge  advocate 
announced  that  the  question  could  not  be 
put. 

Q.  Does  the  side  of  the  paper,  now  held 
toward  you,  resemble  that  on  which  Mr. 
Spencer  was  writing  ? 

A.  Yes,  sir;  he  was  holding  it  in  his 
hand  writing  with  a  pencil ;  when  I  saw  it 
before  the  court  of  inquiry,  it  was  down  on 
a  book,  and  I  saw  but  one  side  of  it. 

Q.  After  the  arrest  of  Mr.  Spencer,  did 
you  notice  any  of  the  crew  communicating 
with  him  by  signs,  or  otherwise  ? 

A.  Yes,  sir;  I  saw  Wilson. 

Q.  State  what  you  saw,  and  all  that  oc- 
curred. 

A.  He  put  both  hands  up  to  his  chin, 
and  would  strike  on  his  cheek  and  chin, 
Mr.  Spencer  would  make  motions  back  to 
him  with  his  hands  and  feet. 

Q.  Have  you  ever  noticed  anything  par- 
ticular in  the  demeanor  of  any  others  of  the 
crew,  while  Mr.  Spencer  was  in  irons  ? 

A.  I  noticed  M'Kinley  and  M'Kee,  with 
Wilson,  at  the  mainmast,  very  often  talking 
with  each  other. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  When  was  this  that  you  saw  Mr. 
Spencer  with  the  papers  ? 

A.  Between  Porto  Praya  and  Monrovia. 

Q.  What  time  of  the  day  was  it  ? 

A.  In  the  afternoon,  between  two  and 


108 


PROCEEDINGS  OF  THE 


three  o'clock,  as  I  was  coming  up  from 
school  on  the  birth-deck. 

Q.  What  were  you  doing  near  Mr.  Spen- 
cer then — were  you  at  any  work  ? 

A.  I  was  going  up  on  the  forecastle,  go- 
ing to  the  head,  coming  from  school. 

Q.  Was  it  fair  weather  1 

A.  Yes,  sir  ;  it  wTas  calm. 

Q.  Did  others  come  up  with  you  from 
school  ? 

A.  No  one  on  the  starboard  side  of  the 
forecastle,  but  Edward  English  ;  there  were 
some  boys  on  the  larboard  side. 

Q.  Did  you  go  light  past  Mr.  Spencer 
then? 

A.  I  looked  over  my  shoulder  at  him, 
and  heard  Cromwell  say,  "  Yes,  sir." 

Q.  Was  it  when  you  looked  over  your 
shoulder,  that  you  saw  the  paper  ? 

A.  Yes,  sir. 

Q.  How  much  of  the  paper  did  you  see  ? 

A.  I  saw  one  half  of  it  under  his  hand — 
the  lower  part. 

Q.  Did  you  not  swear  before  the  court 
of  inquiry  that  you  only  saw  the  top  part  ? 

A.  No,  sir. 

Q.  Have  you  ever  said  the  paper  looked 
a  good  deal  worn,  as  if  it  had  been  in  the 
pocket  ? 

A.  Yes,  sir. 

Q.  Describe  why  you  said  the  paper 
looked  so. 

A.  It  looked  so  from  the  color  of  it,  and 
from  the  places  where  it  had  been  folded, 
and  the  places  where  it  had  been  creased. 

Q.  What  kind  of  color  could  wearing  it 
in  a  pocket  give  a  paper  ? 

A.  A  dark  color — dirty. 

Q.  On  which  side  was  the  dirty  color — 
the  back,  or  front  1 

A.  I  only  saw  but  one  side — the  back. 

Q.  What  side  do  you  call  the  back  ? 

A.  The  side  which  was  toward  me. 

Q.  If  you  only  saw  the  back,  how  do  you 
know  Mr.  Spencer  was  writing  names  on 
the  other  side  ? 

A.  I  say  I  only  thought  he  was  writing 
names,  because  he  would  write  so  many 
words  and  then  stop. 

Q.  Do  you  call  the  back  of  this  paper 
dirty,  as  if  it  had  been  worn  in  a  pocket  ? 

A.  Yes,  sir. 

Q.  When  writing  did  Mr.  Spencer  rest 
it  on  nothing  but  his  hand  ? 

A.  No,  sir. 

Q.  Is  not  this  paper  soft  ? 


A.  Yes,  sir. 

Q.  Did  Mr.  Spencer  write  hurriedly 
boldly  ? 

A.  No,  sir,  he  did  not  write  hurriedly. 

Q.  In  passing,  when  you  saw  him,  ho 
many  times  did  you  see  him  write  and  stoi 
and  begin  again,  which  made  you  think  h 
\vas  putting  down  names  ? 

A.  I  saw  him  write  once  when  I  passei 
him,  then  when  I  got  into  the  head  I  sa1 
him  write  three  or  four  times. 

Q.  While  you  were  in  the    head   ho 
long  would  he  seem  to  stop  between  tb 
acts  of  writing  ? 

A.  About  a  minute. 

Q.  W^as  it  from  the  short  time  he  took 
write  each  time  that  you  thought  him  p 
ting  down  names  ? 

A.  Yes,  sir. 

Q.  Seeing   the    softness   of    that  pa[ 
would  not  a  pencil  stick  through  it  with 
rest  but  the  hand  ? 

A.  No,  sir. 

The  paper  was  held  in  the  hand  of  a 
member  of  the  court,  and  several  marks 
made  on  it  with  a  pencil  without  going 
through. 

Q.  Are  not  the  names  on  the  paper  in 
Greek  characters  ? 

A.  I  don't  know,  I  don't  understand 
Greek. 

Q.  Can  you  read  and  write,  and  are  they 
such  characters  as  you  understand  ? 

A.  I  can  read  arid  write ;  I  can't  under- 
stand the  characters. 

Q.  When  did  you  first  tell  of  having 
seen  Mr.  Spencer  with  Cromwell,  with  a 
paper  ? 

A.  In  the  wardroom  when  the  Somer; 
was  lying  at  the  navy  yard. 

Q.  Who  was  the  very  first  person  yi 
did  tell  ? 

A.  Mr.  Gansevoort. 

Q.  Did  you  not  hear  before  the  executii 
that  a  paper  had  been  found  in  Mr.  Spe 
cer's  locker  as  to  the  mutiny  ? 

A.  No,  sir. 

Q.  Did  you  hear  the  commander's    a 
dress    to    the    crew    when    Waltham 
flogged  ? 

A.  Yes,  sir. 

Q.  Did  riot  the  commander  then  state 
paper  had  been    found  in   Mr.    Spencer'i 
locker  ? 

A.  Not  that  I  heard  of.  I  did  not  he; 
him  say  so. 


NAVAL  COURT  MARTIAL. 


109 


t^.  Wae  mere  not  much  talk  among  the 
crew  as  to  whether  Cromwell  was  guilty  or 
innocent  ? 

A.  I  never  heard  any  of  the  boys'talking 
about  it. 

Q.  Did  you  hear  what  Cromwell  said 
when  about  to  die  ? 

A.  He  said  he  was  innocent,  and  to  tell 
his  wife  and  Lieutenant  Howell  so,  and 
that  we  would  find  it  out  in  less  than  six 
months. 

Q.  When  was  it  that  Mr.  Spencer  and 
Cromwell  had  this  conversation  about  ma- 
king the  brig  a  pirate  ? 

A.  A  few  days  before  I  saw  him  with 
the  paper,  that  was  the  last  time.  I  have 
heard  him  say  so  frequently. 

Q.  When  you  have  heard  him  so  fre- 
quently talk  thus  would  no  one  be  by? 

A.  Yes,  sir.  I  have  seen  M'Kinley  and 
M'Kee,  I  have  seen  the  forecastle  crowded 
with  boys ;  they  would  be  dancing  to  the 
fiddle, 

Q.  Have  you  or  not  heard  many  of  the 
seamen  talk  about  the  Somers  as  raking  in 
her  masts  like  a  pirate,  and  being,  by  her 
fast  sailing,  fit  for  one  ? 

A.  Yes,  sir. 

Q.  Have  you  or  not  heard  Stewart,  or 
Browning,  or  Anderson,  spinning  yarns 
about  slavers  and  pirates,  and  what  sort  of 
vessels  would  suit  for  such  business  ? 

A.  No,  sir. 

Q.  What  sort  of  signs  were  they  that  Mr. 
Spencer  made  to  Wilson  ? 

.A.  He  would  shake  his  hands  (as  des- 
cribed to  court),  and  would  knock  his  feet 
together. 

Q.  Would  Wilson  and  he  laugh  when 
these  signs  were  going  on  ? 

.A.  Yes,  sir.. 

Q.  From  the  fact  of  the  laughing  and 
manner  of  Wilson,  did  his  manner  not  seem 
as  if  it  was  to  make  fun  by  Wilson  at  Mr. 
Spencer  for  being  put  in  irons  1 

A.  No,  sir.  I  don't  think  he  was  ma- 
king fun  of  him.. 

Q.  What  day  and  time  of  the  day  was  it 
that  these  signs  passed  between  Wilson  and 
Mr.  Spencer? 

A.  In  the  afternoon  about  four  o'clock  of 
the  afternoon  of  the  day  after  Mr.  Spencer 
was  put  in  irons  ? 

BY    CAPTAIN    SHUBRICK. 

Q.  What  did  you  think  was  the  object 


of  Mr.  Spencer  shaking  his  hands  and  feet 
at  Wilson? 

A.  I  don't  know. 

Q.  Show  how  Wilson  held  his  bands 
when  he  carried  them  to  his  chin  ? 

A.  He  would  go  so  (showing  the  court). 

Q,  Did  you  not  at  the  time  think  it  was 
meant  by  Wilson  to  show  Spencer  that  that 
was  the  only  way  that  he,  in  irons,  could 
move  his  hands  to  his  face  ? 

Q.  No,  sir,  I  did  not.  I  did  not  know 
what  to  think  of  it. 

Q.  Was  Wilson  laughing  when  he  turn- 
ed off? 

A.  Yes,  sir. 

Q.  Was  Mr.  Spencer  fond  of  plaguing 
and  making  fun  of  those  he  knew  of  the 
crew  ? 

A.  No,  sir.  I  never  saw  him  plaguing 
anybody. 

Q.  Who  was  Mr.  Spencer's  guard  at  the 
time  of  these  signs  ? 

A.  I  believe  the  doctor. 

Q.  Did  the  doctor  order  off  Wilson  ? 

A.  No,  sir,  he  did  not  see  him  ;  he,  Wil- 
son, was  standing  by  the  main-mast. 

Q.  When  did  you  first  tell  of  having  seep 
these  signs? 

A.  In  the  wardroom  after  I  got  here. 

Q.  Were  you  on  deck  when  the  ma«?l 
was  carried  away,  and  whereabouts  ? 

A.  Yes,  sir.     I  was  on  the  forecastle. 

Q.  What  orders  were  given  then,  and  by 
whom,  and  who  went  to  the  brace  ? 

A.  Small  and  W.  A.  King  went  to  the 
brace,  Mr.  Rogers  was  officer  of  the  deck, 
I  believe  it  was  the  starboard  watch,  the 
orders  were  given  by  Mr.  Rogers  ;  I  believe 
they  were  to  "  take  a  small  pull  on  the 
weather-main-royal-brace,"  and  called  out 
three  or  four  times  for  them  to  belay  it  ? 

Q.  Did  you  see  King  and  Small  pulling? 

A.  Yes,  sir. 

Q.  Were  they  the  only  ones  at  the  brace  ? 

A.  Yes,  sir,  there  were  only  two  at  the 
brace. 

Q.  Did  King  stop  pulling  at  the  order  to 
belay  ? 

A.  Yes,  sir.  He  was  holding  on  behind 
hand,  Small  was  swigging  off. 

Q.  Would  you  have  thought  before  that  a 
man  could  pull  stoutly  enough  to  carry 
away  the  mast  ? 

A.  Yes,  sir. 

Q.  Did  you  see  Cromwell  before  the 
pull,  where  was  he  ? 


110 


PROCEEDINGS  OF  THE 


A.  Yes,  sir.     He  was  on  the  forecastle. 

Q.  What  had  he  been  about  1 

A.  I  don't  know  what  he  had  been  about, 
it  was  my  watch  below,  and  I  had  been  up 
five  or  six  minutes,  Cromwell  was  standing 
on  the  forecastle. 

Q.  Who  was  Cromwell  standing  with  1 

A.  He  was  standing  by  himself. 

Q.  Where  was  Small  when  the  order 
was  given  to  pull,  sitting  or  standing  ? 

A.  In  the  starboard  gangway,  he  was 
sitting  on  the  gun  slide. 

Q.  Who  was  with  him  ? 

A.  He  was  sitting  alone,  sewing,  some 
more  of  the  boys  were  sitting  between  the 
guns  on  the  bags,  but  he  was  not  talking  to 
them. 

Q.  What  did  Cromwell  do  when  the 
mast  was  carried  away  ? 

A.  He  went  aft,  and  up  aloft. 

Q.  Did  he  move  brisk  ? 

A.  Yes,  sir. 

Q.  Were  his  movements  prompt,  like 
those  of  a  seaman  who  wanted  to  be  of 
service  ? 

A.  Yes,  sir ;  he  went  aloft  as  quick  as 
he  could. 

BY  CAPTAIN    SLOAT. 

Q.  Was  not  his  station  on  the  forecastle, 
do  you  know  what  induced  him  to.  go  aloft, 
out  of  his  station  ? 

A.  His  station  was  on  the  forecastle ;  I 
do  not  know  what  took  him  aloft. 

BY    JUDGE    ADVOCATE. 

Q.  At  accidents  like  these,  was  not  Crom- 
well usually  noisy  and  bustling. 

A.  Yes,  sir. 

Q.  Have  you  seen  him  on  such  occasions 
before,  go  aloft  ? 

A.  No,  sir  ;  there  never  was  anything 
of  the  kind  before. 

Q.  Did  Cromwell  give  any  order  while 
on  deck,  or  when  going  aloft  ? 

A.  No,  sir,  not  that  I  heard. 

Q.  Where  was  Small  when  the  mast 
went? 

A.  After  the  brace  was  belayed  he  went 
and  sat  down  again  on  the  gun  ;  and  the 
mast  carried  away  just  as  he  was  sitting 
down. 

Q.  Had  he  taken  up  his  sewing  articles 
before  the  mast  went? 

A.  No,  sir,  he  had  not  got  rightly  set 
down? 


Q.  Was  you  on  deck  that  night  wh( 
they  were  swaying  the  mast  ? 

A.  Yes,  sir. 

Q.  Were,  or  not,  most  of  the  crew  th< 
forward,  and  if  so,  how  were  they  disposii 
of  themselves  ? 

A.  They   were    in   the    gangways    ai 
round    the  mast;  there   were  none  laying 
down. 

Q.  State  what  occurred  about  getting  tl 
men  to  man  the  mast  ropes  ? 

A.  Nothing  occurred,  only  when  tl 
mast  was  part  up  some  of  them  went  fc 
ward,  and  the  boatswain's  mate  was  sent 
send  them  aft ;  they  went  aft  with  a  rusl 
and  Mr.  Gansevoort  thought  it  was  me; 
to  rush  aft  and  rescue  the  prisoners. 

Q.  Did  the  boatswain's  mate  flourish  his 
colt  about  ? 

A.  Yes,  sir,  he  took  his  colt. 

Q.  Were  the  men  laughing  and  serai 
bling  ? 

A.  Yes,  sir,  they  made  a  noise  laughing 
and  scrambling. 

Q.  What  did  they  appear  to  be  scram- 
bling for  ? 

A.  Afraid  of  getting  struck  with  the  colt. 

BY  CAPTAIN  WYMAN. 

Q.  Did  or  did  not  Cromwell,  after  he  got 
aloft,  appear  to  be  active  in  assisting  to  clear 
away  the  wreck? 

A.  He  did  not  seem  to  do  much,  he  stood 
on  the  cross-trees. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  hear  Cromwell  say  anything 
while  on  the  cross-trees  ? 

A.  No,  sir. 

Q.  Were  the  other  men  inactive  aloft ? 

A.  Some  of  them  did  something,  some  a 
little,  and  some  stood  still ;  Wilson  did 
nothing,  Small  did  a  little. 

Q.  Do  you  or  not  know  that  a  tail-block 
was  necessary  aloft  before  what  was  right 
should  be  done  ? 

A.  No,  sir,  I  don't  know. 

Q.  Did  you  hear  any  one  talk  about  res- 
cuing the  prisoners  ? 

A.  No,  sir. 

Q.  Had  you  seen  Wilson  use  the  dirk 
of  his  ? 

A.  No,  sir. 

Q.  What  was  your  duty  on  shipboard  ? 

A.  I  was  on  the  forecastle. 

Q.  Did  the  boys  talk  much  about  the  Is 
of  Pines  after  Mr.  Spencer's  arrest  ? 


NAVAL  COURT  MARTIAL. 


Ill 


A.  No,  sir ;  I  never  heard  anybody  talk 
about  it. 

Q.  What  was  it  said  Mr.  Spencer  was 
arrested  for  before  the  commander  told  the 
crew  ? 

A.  The  boys  all  told  me  it  was  for  fight- 
ing with  Mr.  Thompson  in  the  steerage. 

Q.  Did  you  hear  this  from  the  boys  of  all 
sizes,  big  and  little  ? 

A.  Yes,  sir,  all  of  them  were  saying  that. 

Q.  Was  Mr.  Spencer  positive  and  quick 
when  he  would  give  his  orders  ? 

A.  No,  sir,  he  would  tell  you  to  do  a 
thing,  he  would  not  be  quick  at  it. 

Q.  Would  or  not  he  tell  the  men  and 
boys  that  if  they  did  not  move  quicker,  and 
obey  him  more  promptly,  he  would  have 
them  overhauled  ? 

A.  No,  sir,  I  never  heard  him  say  that. 

Q.  When  you  said  there  had  been  no 
accident  like  that  of  the  mast,  what  did  you 
mean  when  you  said  that  Cromwell  was 
bustling  on  such  occasions  ? 

A.  I  mean  he  was  noisy  when  there  was 
anything  to  be  done  aloft. 

The  examination  of  William  Inglis  here 
closed ;  his  evidence  was  read  to  him  and 
corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Tuesday),  Feb.  28,  at  11  o'clock,  A.M. 


"U.  S.  NAVY  YARD,      > 
"Brooklyn,  Feb.  28,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,          Com'dr  Ogden, 
Storer,  "       Shubrick, 

Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Peter  Tyson  was  then  called,  and  being 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name  ?  your  age  ?'  your 
rank?  were  you  on  board  of  the  Somers 
during  her  last  cruise  ? 

A.  My  name  Peter  Tyson,  my  age  nine- 


teenth year  ;  I  was  on  board  the  Somers  in 
her  last  cruise  as  third-class  boy. 

Q.  Did  you  overhear  any  private  conver- 
sation between  Wilson  and  M'Kinley  on 
the  night  before  the  arrest  of  Mr.  Spencer  ? 
if  so,  relate  fully  all  that  you  observed  and 
heard  on  that  occasion. 

A.  Yes,  sir  ;  the  night  before  Mr.  Spen- 
cer's arrest,  I  was  laying  aft  between  four 
and  five  gun  on  the  larboard  side  to  lee- 
ward ;  Wilson  and  M'Kinley  came  aft ; 
Wilson  had  no  hat  on,  his  axe  and  sharpen- 
ing stone  in  his  hand  ;  M'Kinley  says  to 
Wilson  that  "  he  had  just  told  me  that  we 
had  spies,  and  that  we  had  better  be  care- 
|  ful ;"  Wilson  then  made  the  reply,  that  "  he 
need  not  fear,  for  he  knowed  him,  knowed 
he  had  been  in  too  many  scrapes,  and  that 
he  did  not  fear  anything,  but  went  right 
straight  ahead ;"  M'Kinley  said  that  was  too 
much  the  case  with  him  ;  Wilson  then  said 
that  he  knew  that  he  did  not  come  on  board 
of  that  vessel  willingly ;  M'Kinley  asked 
him  if  he  would  like  to  join  them ;  Wilson 
replied  that  he  would  ;  M'Kinley  then  told 
him  that  he  (M'Kinley)  would  rather  go  in 
a  regular  slaving  expedition,  for  there  they 
had  $35  per  month  and  prize-money :  I 
asked  M'Kinley  what  that  was  he  was 
talking  about  slavers  ;  he  said  he  was  talk- 
ing about  a  slaver  that  started  from  St. 
Thomas,  was  gone  but  three  or  four  months, 
and  had  taken  three  prizes. 

Q.  With  which  of  the  crew  was  Mr. 
Spencer  particularly  intimate  ? 

A.  I  have  seen  him  frequently  talking 
with  Small  and  Cromwell. 

Q.  Did  you  ever  overhear  any  of  their 
conversation  ? 

A.  Immediately  after  quarters  on  the 
night  of  Mr.  Spencer's  arrest,  me  and  Sears 
went  forward,  and  Cromwell  and  Small 
were  in  conversation  together  ;  Sears  asked 
Small  what  Mr.  Spencer  was  confined  for ; 
Cromwell  replied  for  a  supposed  mutiny; 
Sears  asked  him  the  meaning  of  mutiny  ; 
he  said  it  was  a  plan  to  kill  the  captain  and 
officers  and  take  the  vessel ;  Small  said  he 
(Small)  thought  like  the  commander  did, 
that  Mr.  Spencer  was  half  crazy  and  child- 
ish ;  they  parted  then,  and  we  went  away : 
I  forgot  to  mention  that  I  asked  M'Kinley 
if  he  would  like  to  go  in  a  slaver,  and  he 
then  made  the  reply  that  they  got  $35  a 
month  and  prize-money,  and  that  he  would 
go  in  one  if  he  got  a  chance  at  St. 


112 


PROCEEDINGS  OF  THE 


Thomas,  and  they  were  regular  pirates  in  a 
measure. 

CJIOSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  time  of  the  day  was  it  that  this 
conversation  took  place  between  Wilson 
and  M'Kinley  ? 

A.  In  the  morning,  about  seven  o'clock. 

Q.  Are  you  positive  it  was  as  early  as  that  ? 

A,  Yes,  sir. 

Q.   Was  it  light  ? 

A.  No,  sir,  it  was  not  very  light,  the 
moon  had  not  risen  ;  I  was  trying  to  get 
asleep. 

Q.  Did  not  M'Kinley  and  Wilson  see 
you  ?  did  they  not  turn  you  over  ? 

A.  Yes,  sir,  and  asked  who  it  was  ;  I 
told  them  who  I  was,  and  that  I  was  trying 
to  get  asleep— to  let  me  alone. 

Q.  Did  they  go  on  conversing  after  this  ? 

A.  Yes,  sir;  they  sat  on  the  tackle  of 
the  gun  at  which  I  lay. 

Q.  Had  you  ever  heard  of  any  plan  or 
wish  to  take  the  brig  then  ? 

A.  Not  before  that. 

Q.  When  you  put  your  question  to  M'- 
Kinley, did  he  answer  you  in  his  usual 
manner  ? 

A,  NOJ  sir ;  he  appeared  to  be  confused. 

Q.  Were  you  lying  down-,  when  you 
put  your  question  ? 

A.  I  do  not  remember  whether  I  was 
lying  down,  or  sat  up  ;  I  won't  be  certain. 

Q.  He  was  still  sitting,  was  he  not,  when 
he  answered  you  ? 

A.  He  and  Wilson  had  got  up,  and  were 
making  ready  to  go  away. 

Q.  How  did- you  judge  he  was  confused, 
considering  your  situation  and  his  ? 

A.  The  manner  in  which  he  stammered, 
when  he  spoke  in  answer  to  me* 

Q.  How  many  feet  were  they  from  you 
when  talking  1  * 

A.  About  three  feet,  not  over  that- — be- 
tween two  and  three  feet. 

Q.  Was  Wilson  the  brig's  butcher? 

A.  Him  and  Warner  used  to  kill. 

Q.  How  long  was  it  before  Mr.  Spencer's 
arrest,  you  and  Wilson  quarrelled  ? 

A.  About  a  week — not  over  a  week. 

Q.  Were  you  stationed  with  Wilson  ? 

A.  Yes,  sir;  he  belonged  to  the  same 
part  of  the  ship. 

Q.  Before  this  conversation  with  M'Kin- 
ley and  Wilson,  had  Wilson  been  flogged 
about  striking  Weaver  ? 


A.  Yes,  sir. 

Q.  How  soon  after  he  was  flogged 
Wilson  threaten  Weaver  ? 

A.  It  was  two  or  three  weeks  after 
quarrelled  with  Weaver,  and  after  he  h 
quarreled  with  me  and  made  up  again,  t 
he  told  rrm  he  would  have  revenge  out. 
the  commander  and  master,  and  would 
Weaver's  life. 

Q.  Have  you  not  frequently  heard 
men  and  boys,  after  being  flogged,  threa 
a  great  deal  of  revenge  ? 

A.  No,  sir ;   I  never  recollect  any  o: 
threaten  to  have  revenge,  but  Wilson. 

Q.  Was  Wilson  passionate  ? 

A.  Yes,  sir;  he  was  pretty  quick-t 
pered,  very  apt  to  strike  the  boys,  who  w 
in  the  same  part  of  the  ship,  if  they  did 
do  exactly  as  he  liked. 

Q>.  When  on  the  coast-  of  Africa,  w 
not-  the  battle-axes  used  in-  barking  wood 

A.  Yes,  sir,  at  Monrovia  ;  the  bark  of 
wood  stained  the  decks. 

Q.  Did  the  bark  stain  the  battle-axes  ? 

A.  Not  that  I   know  of;  it  might  ha 
made  them  a  little  rusty,  but  I  do  not  know 

Qi  Do  you  know  anything  of  Wilso 
being  spoken  to  by  Lieut.  Gansevoort,  abou 
his  axe  not  being  in  order  ? 

A.  No,  sir ;  I  know  his,  axe-  was.  ^ 
sharp ;  I  thought  it  was  in  pretty  good  ori 
de.r. 

Q.  In,  the  conversation  between  M'Knn 
ley  and  Wilson,  did  you  hear  the  talk  about! 
telling  fortunes  ? 

A.  Yes,  sir;  I  recollect  Wilson  said  r^ 
fortune-teller  told  him  he  would  come  to, 
his  end  on  the  water  in  some  bad  way,  that] 
he  was  very  much  afraid  of  it,  and  if  he  got! 
home  safe,  he  would  go  to  her  again,  try! 
her  again  to  see  what  she  would  say  next] 
time. 

Q.  What  did  M'Kinley  say  about  for-i 
tunes  ? 

A.  I  don't  recollect  M'Kinley's  saying 
anything,  only  Wilson, 

Q.  Did  Wilson  say  anything  about  run 
ning  off,  when,  he  got  to  St.  Thomas  ? 

A.  No,  sir  ;  but  M'Kinley  said  he  would 
run  at  St.  Thomas,  if  he  got  a  chance,  am 
would  go  in  a  slaver ;  he  said  they  were 
regular  pirates  in  a  measure. 

Q.  What  did  Wilson  say,  when  M'Kin- 
ley said  he  was  going  to  run  at  St.  Thomas 

A.  I  don't  recollect  Wilson  saying  any 
thing. 


NAVAL  COURT  MARTIAL. 


113 


Q.  How  long  had  you  been  lying  down, 
when  the  conversation  between  Wilson  and 
M'Kinley  commenced  ? 

A.  Somewheres  in  the  neighborhood  of 
an  hour  ;  it  was  against  orders  to  lie  to 
leeward  any  how. 

Q.  Had  you  been  asleep  before  they 
came  up  ? 

A.  Pretty  near  it  when  they  first  came 
up  ;  they  turned  me  over. 

Q.  Have  you  not  heard,  oftentimes,  talk 
about  slavers  and  pirates  in  the  brig,  before 
the  arrest  ? 

A.  I  recollect  Small  talking  about  being 
in  a  slaver  once  ;  he  is  the  only  person. 

Q.  Have  you  not  heard  frequent  talk 
about  the  rake  of  the  Somers'  masts — what 
would  be  said  ? 

A.  The  men  Avould  say  they  raked  rather 
too  much  for  their  fancy — that  is  all. 

Q.  Did  not  the  men  say  the  rake  made 
her  look  like  a  pirate,  or  slaver  ? 

A.  I  don't  recollect  hearing  that  remark 
made. 

Q.  When  the  English  cruiser  chased 
you,  was  it  not  said  she  took  you  for  a  sla- 
ver, or  pirate  ? 

A.  Not  that  I  recollect ;  I  heard  Crom- 
well say  he  had  been  where  there  was  a 
damned  sight  of  blood  spilt,  and  not  half  so 
much  fuss. 

Q.  When  Sears  asked  Cromwell  what  a 
mutiny  meant,  what  time  of  day  was  it  ? 

A.  Immediately  after  quarters — imme- 
diately after  Mr.  Spencer  was  put  in  irons, 
as  soon  as  the  retreat  was  beaten., 

Q.  Had  the  commander  then  had  Small 
aft? 

A.  No,  sir  ;  Small  had  had  no  conversa- 
tion with  the  commander. 

Q.  Do  you  not  know  that  when  Mr. 
Spencer  was  put  in  irons,  Small  wa-s  sent 
for,  and  went  aft  ? 

A .  No,  sir ;  I  do  not  recollect  seeing 
Small  aft,  until  after  Sears  left  him ;  the 
commander  called  him  aft  at  that  time. 

Q.  How  long  had  Small  left  his  station 
at  quarters,  when  .this  talking  with  Crom- 
well was  ? 

A.  As  I  said  before,  as  soon  a»  we  could 
go  forward,  after  the  retreat  w&  beaten,  we 
found  Cromwell  and  Small  i*  conversation. 

Q.  Were  the  irons  then  on  Mr.  Spencer, 
and  was  he  placed  near  the  arm-chest,  be- 
fore retreat  was  beaten  ? 

A.  Yes,  sir,  they  were;  he  sat  with  his 
15 


back  against  the  arm-chest ;  he  had  a  camp 
stool  before  retreat  was  beaten. 

Q.  If  Small  had  not  been  aft,  when  was 
it  that  he  said  the  commander  thought  Spen- 
cer half  crazy,  or  childish  ? 

A.  I  don't  know  ;  I  thought  it  strange  at 
the  time  ;  I  don't  know  that  he  had  had 
any  conversation  with  the  commander. 

Q.  Did  Cromwell  explain,  as  well  as  he 
appeared  to  be  able,  the  meaning  of  mutiny 
to  Sears  ? 
A.  Yes,  sir. 

Q.  Did  Cromwell  say  anything  about  Mr. 
Spencer  then  ? 

A.  I  do  not  recollect ;  Small  made  the 
reply. 

Q.  Did  Crotnwell  say  anything  to  Sears, 
about  mutiny  being  a  bad  business,  or  any- 
thing of  that  sort  ? 

A .  I  do  not  recollect ;  he  told  him  what 
mutiny  was. 

Q.  When  did  you  first  see  the  dirk,  or 
knife,  of  Wilson  ? 

A.  It  was  Warner  who  purchased  it;  he 
(M'Kinley)  bought  it  from  Warner  ;  I  saw 
it  the  day  after  we  left  Monrovia,  perhaps 
the  same  day. 

Q.  Do  you  know  anything  about  Mr. 
Heiskill  having  first  purchased  that  dirk  ? 

.4.  I  do  not;  I  saw  M'Kinley  and  War- 
ner have  one. 

Q.  What  did  Wilson  use  it  for? 
A.  I  never  saw  him  use  it  for  anything. 
I  was  working  with  him  one  day,  and  took 
up  the  dirk  to  use  i< ;  he  told  me  to  put  it 
down,  that  he  had  had  enough  trouble  with 
it  already  ;  rfiat  he  had  just  been  sharpen- 
ing it,  ap^  wished  Mr.  Spencer  had  it. 
Q. '  When  was  it  he  told  you  this  ? 
yl.  Somewhere  about  a  week  before  Mr. 
Spencer's  arrest. 

Q.  If  it  was  a  week  before  Mr.  Spen- 
cer's arrest,  why  did  he  then  wish  Mr. 
Sp-ncer  had  it  ? 

A.  I  don't  know,  sir  ;  he  could  tell  better 
than  I  could. 

Q.  Mr.  Spencer  not  being  then  confined, 
what  was  there  to  prevent  his  giving  it  to 
Mr-  Spencer  1 

A.  I  do  not  know;  he  did  not  tell  me 
his  reasons,  and  I  did  not  think  to  ask 
him. 

Q.  Why  are  you  sure  it  was  before  Mr. 
Spencer  was  confined  ? 

A.  Because  I  never  worked  with  Wilson 
after  Mr.  Spencer  was  confined. 


114 


PROCEEDINGS  OF  THE 


Q.  You  say  it  was  before  this,  that  he 
had  spoken  the  same  way  to  Humbert,  how 
do  you  know  that  ? 

A.  Humbert  told  me,  since  we  arrived 
here,  that  Wilson  told  him  that  same  thing, 
that  same  day  1  was  working  with  Wilson, 
and  Humbert  was  at  the  weather-wheel ;  it 
was  my  trick  at  the  lee-wheel,  this  makes 
me  remember  the  day. 

Q.  Did  you  tell  this  circumstance,  about 
your  duties  at  the  wheel,  to  Humbert  ?  and 
did  he  tell  you  he  recollected  it,  and  that 
was  the  day  Wilson  spoke  to  him  so  ? 

A.  Yes,  sir. 

Q.  Did  Wilson  leave  his  dirk  in  his  sail- 
bag  of  nights  ? 

A.  I  don't  know ;  I  generally  saw  it 
there.  I  sometimes  saw  him  carrying  it ; 
M'Kinley  carried  his  all  the  time. 

Q.  Where  was  the  sail-bag  put  of 
nights  ? 

A.  I  do  not  know;  Wilson  had  the  care 
of  it. 

Q.  Don't  you  know  it  was  put  in  the 
boatswain's  store-room  ? 

A.  No,  sir. 

Q.  Did  you  not  report  Wilson,  for  striking 
you,  to  Mr.  Thompson — was  tie  whipped 
for  it  1 

A.  I  did ;  he  was  not  whipped  for  it. 

Q.  Did  not  you  and  Wilson  get  along 
very  badly  together  ? 

A.  Part  of  the  time  we  did  not  agree 
very  well ;  he  used  to  try  and  work  me  up 


my  watch  on  deck  at  eight  o'clock ;  it 
seven  then. 

Q.  Did  you  act  as  if  you  were  asleep  ? 

A.  Not  exactly   as    I   was    asleep,   bi 
inclined   that   way ;    I    wanted   to    get 
sleep. 

Q.  Was  there  any  change  in  the  convei 
sation  of  M'Kinley  and  Wilson  ?  and  if 
what  seemed  to  occasion  it  ? 

A.  There  was  a  change,  when  I  aske< 
M'Kinley  what  he  was  talking  about  sh 
vers  ;  he  appeared  to  be  confused. 

Q.  Was   the    Somers    at    quarters,    ai 
cleared  for  action,  when   Cromwell  made 
the    remark,   that   he   had   been    where 
damned  sight  of  blood  was  shed,  without 
much  fuss  ? 

A.  No,  sir  ;  he  was  on  the  forecastle 
time  he  said  it. 

Q.  Did  you  ever  know  Mr.  Spencer 
damn  the   commander,  and  refuse  to  obi 
his  orders  to  look  out  for  shoal  water  on  tl 
fore-yard  ? 

A.  Yes,  sir  ;  Mr.  Delonde  was  on  the 
fore-yard  ;  we  were  coming  from  Monrovia 
to  St.  Thomas  ;  it  was  eight  bells,  and  the 
watch  had  been  called  in  the  afternoon ; 
Mr.  Spencer  came  forward  to  the  forward 
jacob's-ladder  ;  he  met  Mr.  Delonde  com- 
ing down  ;  he  went  up  and  sat  on  the  Ja- 
cob's ladder ;  Mr.  Delonde  told  him  to  go 
up  on  the  fore-yard,  to  look  out  for  shoals 
and  breakers  ;  he  said  he  was  not  going. 
Mr.  Delonde  told  him  it  was  the  command- 


pretty  hard  ;  the  latter  part  we   were  very    er's  orders  ;  he  said  he  did  not  care  a  damn, 
thick. 

Q.  Did  he  not  use  to  complain  of  you,  as 
an  insolent  and  disobedient  boy  i 

A.  I  do  not  recollect  hearing  that  com- 
plaint. 

Q.  Did  he  not  report  you  to  Mr.  Oanbe- 
voort,  for  insolence  and  disobedience,  on 
the  occasion  of  firing  a  gun  ? 


A.  Yes,  sir;  he  did  report  me  for  faring 
a  gun  at  quarters ;  he  said  I  did  not  do  ex- 
actly as  he  told  me ;  he  was  not  captain  of 
the  gun. 

Q.  When  was  it  you  reported  Wilson  to 
Mr.  Thompson  ? 

A.  Not  a  great  while  before  the  arrest; 
two  or  three  weeks,  I  believe. 

BY  COMMANDER  MACKENZIE. 

Q.  After  Wilson  and  M'Kinley  turned 
you  over,  did  you  seem  to  go  to  sleep  ? 


he  never  gave  him  any  such  orders.     Mi 
1  Delonde  told  him  the   officer  of  the   de< 
had,   if  the   commander  had  not ;  he  saic 
that  was  nothing,  he  did  not  intend  to 
without  the  commander  told  him. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Which  was  the  younger  officer,  Mr. 
^>pencer  or  Mr.  Delonde  ? 

A.  They  were  both  forecastle  officers ; 
\e  was  Mr.  Delonde's  relief. 
N^.  Did  Mr.  Delonde  report  Mr.   Spen- 


cer s , 

•A.  \  <Jo  not  know  ;  he  left  him  sitting  on 
the  jacob\ladder. 

The  testimony  of  Peter  Tyson  here 
closed  ;  his  evidence  was  read  to  him,  and 
corrected  by  hi  HI 

Joseph  Sears  wo*  then  called,  and  being 
duly  sworn  by  the  pt^sident  of  the  court, 


A.  I  was  trying  to  get  to  sleep  ;  it  was)  testified  as  follows : — 


NAVAL  COURT  MARTIAL. 


115 


EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name  ?  your  age  ?  your 
rank  ?  were  you  on  board  of  the  Somers 
during  her  last  cruise  ? 

A.  My  name  Joseph  Sears,  my  age  near- 
ly nineteen  ;  I  was  on  board  of  the  Somers 
as  second-class  boy  in  her  last  cruise. 

Q.  Did  you  notice  anything  particular  in 
the  conduct  of  Cromwell  and  Small  imme- 
diately after  the  arrest  of  Mr.  Spencer  ? 

A.  Yes,  sir ;  after  Mr.  Spencer  was  ar- 
rested and  the  retreat  beaten,  I  went  for- 
ward ;  Cromwell  was  leaning  against  the 
bitts,  Small  standing  beside  him  ;  they  were 
talking  together,  not  to  the  boys,  and  one  or 
two  boys  standing  around  ;  I  asked  Small 
what  Mr.  Spencer  was  arrested  for  ;  I  think 
it  was  Cromwell  who  answered  me,  I 
am  not  positive  :  he  said  it  was  for  a  sup- 
posed mutiny  ;  I  asked  Small  what  "  sup- 
posed mutiny"  was  ;  he  said  it  was  to  mur- 
der one  person  or  more  ;  Small  said  that  he 
supposed  as  the  captain  did,  that  there  was 
to  be  no  mutiny,  that  the  young  man  was 
half  crazy,  half  ©ut  of  his  head  ;  Cromwell 
was  leaning  against  the  bitts,  his  hat  over 
his  eyes,  apparently  very  rnad,  biting  his 
lips  and  rolling  his  eyes  about ;  he  would 
look  out  from  under  his  hat  to  see  anybody, 
as  if  he  did  not  want  to  let  any  one  see  his 
face. 

Q.  I>id  you  ever  see  Mr.  Spencer  and 
Wilson  in  private  conversation?  if  so,  state 
the  circumstances. 

A.  One  evening  I  went  forward  to  call 
Wilson :  he  belongs  on  the  quarterdeck  ; 
he  was  sitting  on  the  forecastle  chest,  talk- 
ing to  Mr.  Spencer,  apparently  in  a  low 
tone  of  voice  ;  as  I  approached  them  they 
discontinued  their  conversation. 

Q.  Did  you  notice  anything  further  in 
the  conduct  of  Wilson  that  evening  ? 

A.  1  can't  say  I  did  particularly. 

Q.  Did  you  observe  Wilson  on  that  or 
any  other  evening  sharpening  his  battle-axe 
and  African  dirk  ? 

A.  I  am  not  positive  whether  it  was  that 
evening ;  it  was  the  second  or  third  evening 
after  we  left  Capo  Mcsurado,  Wilson  was 
sitting  on  No.  4  gun ;  he  got  out  from  his 

side  a  large  dirk-knife,  I  should  call  it 

one  of  those  which  were  brought  from  Cape 
Mcsurado;  there  were  three  brought  on 
board  to  my  knowledge  :  he  got  it  and 
sharpened  it  with  a  idle  until  it  was  very 
bright,  he  kept  feeling  the  edge  of  it  with 


his  thumb ;  afterward  he  went  aft  and  got 
his  battle-axe  out  of  the  rack,  and  com- 
menced filing  that ;  to  the  best  of  my  recol- 
lection he  was  some  two  or  three  hours 
filing  the  two ;  I  then  asked  him  to  knock 
off;  he  replied,  the  watch  would  soon  be 
relieved,  it  was  mid-watch. 

Q.  Refresh  your  memory,  and  state  if,  in 
the  conversation  between  Cromwell  and 
Small,  Cromwell  expressed  any  wonder  as 
to  who  could  be  Mr.  Spencer's  aids  in  the 
supposed  mutiny  ? 

A.  Cromwell  said  he  "  wondered  who 
were  his  aids,  that  he  could  not  do  it  alone  ;" 
Small  made  the  reply  that  he  did  not  know 
who  could  be  his  aids  or  aid-de-camps. 

Q.  Have  you  ever  heard  M'Kinley  threat- 
en the  commander  ? 

A.  I  think  it  was  at  Teneriffe,  the  com- 
mander let  the  starboard  watch  go  on  lib- 
erty, I  don't  know  how  many ;  M'Kinley 
said  he  saw  the  commander  ashore,  the 
commander  ordered  him  to  go  aboard,  he 
disobeyed  his  orders  and  was  punished  for 
it ;  previous  to  being  flogged  and  after,  he 
said  he  would  not  forget  Commander  Mac- 
kenzie for  what  he  had  done  ;  before,  he 
said  he  would  never  forget  him  if  he  flogged 
him,  that  he  would  have  satisfaction  if  he 
punished  him — those  are  the  words. 

CROSS-EXAMINED    BY    JUDGE     ADVOCATE. 

Q.  Did  you  see  Mr.  Spencer  ironed  ? 

A.  I  saw  him  put  in  irons. 

Q.  Did  you  see  Small  and  Whales  called 
aft  then  ? 

A .  I  saw  Small  called  aft  after  Mr.  Spen- 
cer was  put  in  irons  ;  I  can't  say  I  saw  Mr. 
Wales  called  aft. 

Q.  What  was  you  about  when  Small 
went  aft  when  thus  called  1  were  you  still 
at  quarters  ? 

A.  No,  sir. 

Q.  WThen  was  Small  called  aft  ? 

A.  After  Mr.  Spencer  was  confined  I  saw 
him  called. 

Q.  Had  Mr.  Spencer  got  seated  at  the 
arn-chest  when  Small  was  called  aft  ? 

A.  I  think  not ;  he  was  standing  against 
the  round-house. 

Q.  How  long  was  it  after  retreat  was 
beat  that  you  had  your  conversation  with 
Small  ? 

A.  Immediately. 

Q.  Had  not  Small  been  aft  when  he  was 
talking  with  you  1 


116 


PROCEEDINGS  OF  THE 


A.  I  think  not ;  I  think  he  had  not  time 
to  go  aft. 

Q.  Did  Small  say  how  he  knew  what 
Mr.  Spencer  was  arrested  for  ? 

A.  I  think  Cromwell  answered  the  ques- 
tion. 

Q.  If  Small  had  not  been  aft,  how  was 
it  that  he  said  he  thought  with  the  comman- 
der that  Spencer  was  half  crazy  ? 

A.  1  can't  tell  you. 

Q.  Did  you  see  Cromwell  and  Small 
when  they  left  their  stations  to  go  forward  ? 

A.  Small  was  not  at  quarters,  I  think  ;  I 
believe  he  was  on  the  sick  list. 

BY    CAPTAIN    PAGE. 

Q.  Had  the  commander  been  forward  so 
that  he  might  have  spoken  to  Small  ? 

A.  The  commander  did  not  go  forward 
to  speak  to  Small  that  I  saw. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Do  you  know  where  Small1  was  when 
you  were  at  quarters  ? 

A.  I  saw  him  sitting  on  the  berth-deck, 
after  that  I  don't  know  where  he  went. 

Q.  Do  you  know  what  brought  Small 
from  the  berth-deck  ? 

A.  No,  sir ;  after  Mr.  Spencer  was  put 
in  irons,  Small  was  sent  for  and  eame  off 
the  berth-deck. 

Q.  Who  went  for  him  or  passed  the 
order  ? 

A.  I  think  Lieutenant  Gansevoort  spoke 
out,  "  Send  Small  aft  here." 

Q.  Was  not  this  order  of  Lieut.  Ganse- 
voort while  you  were  at  quarters  ? 

A.  No,  sir,  it.  was  after  Mr.  Spencer's 
arrest. 

Q.  Did  Small  come  from  the  berth-deck 
to  obey  that  order. 

A.  I  think  he  did. 

Q.  While  you  were  at  quarters,  did  you 
see  Small  on  the  spar-deck. 

A.  I  think  not. 

Q.  Was  not  the  first  time  you  saw  Small 
on  the  spar-deck  that  evening,  when  he 
came  then  to  obey  Lieutenant  Gansevoort's 
order  ? 

A.  I  saw  him  at  the  bitts  talking  with 
Cromwell  first. 

Q.  Was  it  Cromwell  or  Small  who  told 
you  what  a  mutiny  was  ?  refresh  your 
memory. 

A.  I  told  you  before  it  was  Small. 

Q.  Did  you  see  Tyson  by  them  ? 


A.  I  did. 

Q.  Did  Cromwell  tell  you  a  mutiny  meai 
the  taking  the  life  of  the  commander 
officers,  and  taking  the  brig? 

A.  He  did  not. 

Q.  Had  you  ever  before  heard  anythii 
of  a  mutiny  or  a  plan  to  take  the  brig  ? 

A.  No,  sir. 

Q.  Did  you  see  Small  when  he  came 
from  the  birth-deck,  before  holding  this  coi 
versation  with  Cromwell  ? 

Q.  Did  you  stop  after  retreat  was  beat< 
to  look  at  what  was  going  on  with  Mr.  S] 
cer  ? 

A.  No,  sir. 

Q.  Before   you  left   quarters,   was    iv 
Spencer  seated  by  the  arm-chest  ? 

^1.  No,  sir;  he  was  standing  against 
round-house. 

Q.  Did  Cromwell  express  any  sorrow  fc 
Mr.  Spencer  ? 

A.  No,  sir,  not  as  I  heard. 

Q.  Who  was  Cromwell  speaking  to  when 
talking  about  Mr.  Spencer's  aids.  ? 

A.  He  was  speaking  to  Small,  I  think. 

Q.  How  long  was  it  before  the  arrest, 
that  Wilson  was  sharpening  his  axe  and 
knife  ? 

A.  I  can't  say  exactly ;  some  two  or 
three  nights  after  we  left  Cape  Mesurado. 

Q.  Have  you  not  heard  many  of  the  sea- 
men and  boys  talking  of  the  fast  sailing  of 
the  Somers,  and  that  she  would  make  a  fine 
slaver? 

A.  I  have  heard  them  talk  of  her  fast 
sailing,  but  nothing  about  her  making  a 
slaver. 

Q.  When  the  cruiser  chased  you,  was 
it  not  said  you  were  taken  for  a  pirate  or 
slaver  ? 

A.  The  boys  made  the  remark,  that  they 
supposed  it  was  an  English  brig  after  us, 
and  that  they  took  us  for  a  slaver. 

Q.  When  did  you  first  hear  about  any  pa- 
pers being  found  in  Mr.  Spencer's  locker? 

A.  The  first  I  heard  of  it,  Commander 
Mackenzie  spoke  of  it,  one  Sunday  after  the 
execution. 

Q.  What  did  the  commander  say  about 
these  papers  ? 

A.  He  said  he  found  some  papers  in  Mr. 
Spencer's  locker,  and  read  some  letters,  and  [ 
a  letter  from  his  mother. 

Q.  When  did  you  first  hear  those  papei 
described  as  containing  names,  and  as 
ing  figures  on  them  ? 


NAVAL  COURT  MARTIAL, 


117 


A.  The  first  I  heard  of  it  was  after  the 
court  of  inquiry  commenced. 

Q.  Did  you  see  Small  pull  the  brace  on 
the  27th  November  ? 

A.  No,  sir. 

Q.  Did  you  see  the  rush  aft  when  the 
mast  was  swayed  ? 

A.  Yes,  sir. 

Q.  What  made  it  ?  Describe  the  trans- 
action? 

A.  When  ordered  to  man  the  mast-ropes, 
everyone  went  as  quick  as  possible  to  obey  it. 

Q.  Did  you  see  Browning  with  his  colt 
then  ? 

A.  No,  sir,;  I  was  on  the  quarter-deck. 

Q.  Did  you  hear  Lieutenant  Gansevoort 
threaten  to  shoot  ? 

A.  No,  sir,  I  did  not. 

Q.  Did  you  hear  Mr.  Rogers  cry  out, 
•"  It  is  me,  sir — I  am  sending  the  men 
aft  "? 

A.  Either  Mr.  Rogers  or  Mr.  Perry,  the 
master  ;  I  think  Mr.  Gansevoort  asked  what 
the  noise  was  about ;  Mr.  Perry  or  Mr. 
Rogers  answered. 

Q.  When  you  heard  the  noise  were  you 
.alarmed,  as  though  something  unusual  was 
taking  place  ? 

A.  No,  sir,  I  was  not ;  I  was  standing  at 
the  mast-rope  ;  I  heard  the  snap  of  a  pistol ; 
that  was  all ;  that  alarmed  me ;  that  was 
after  Cromwell  came  down  from  aloft. 

Q.  Did  you  see  the  commander  go  into 
his  cabin  and  return  with  his  pistols,  at  this 
time  ? 

A.  No,  sir  ;  I  saw  the  commander  with 
.a  pistol,  I  think,  and  Mr.  Gansevoort  also. 

The  testimony  of  Joseph  Sears  was  here 
suspended ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Wednesday),  March  1,  at  11  o'clock, 
A.  M. 


NAVY  YARD,  > 

Brooklyn,  March  1,  1843.  } 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 
•  Captain  Downes,     Captain  McKeever, 

Read,  "       Page, 

"       Bolton,  "       Gvvinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

Storer,  "       Shubrick, 

Members ; 


W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Joseph  Sears  recalled. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Tell  where  you  were  before  the  order 
to  sway  the  mast  was  given — everything  you 
saw  and  heard  from  officers  and  men,  till  the 
mast  was  sent  up. 

A.  I  was  on  the  starboard  gangway  before 
the  order  was  given ;  the  order  was  given  to 
man  the  mast-rope  ;  Mr.  Gansevoort,  as  I 
said  before,  wanted  to  know  what  that  noise 
was ;  Mr.  Rogers  or  Mr.  Perry  answered 
him,  "  It's  me,  sir,  sending  the  men  aft — 
that's  all." 

Q.  How  near  were  you  to  Mr.  Ganse- 
voort ? 

A.  Mr.  Gansevoort  was  on  the  starboard 
side  of  the  quarter-deck  ;  I  was  in  the  star- 
board gangway  ;  I  can't  exactly  say  how  far 
I  was  from  him. 

Q.  State  your  idea  as  to  the  distance  you 
were  from  him. 

A.  From  eighteen  to  twenty-four  feet — 
three  or  four  fathoms  ;  I  saw  him  when  he 
gave  the  order. 

Q.  Did  you  hear  Mr.  Gansevoort  say  he 
would  shoot  the  first  man  that  put  his  foot 
on  the  quarter-deck ! 

A.  No,  sir. 

Q.  Did  you  hear  Mr.  Gansevoort  tell  the 
men  that,  in  the  state  of  the  ship,  they  ought 
to  move  more  quietly  ? 

A.  No,  sir. 

Q.  Did  you  get  close  to  Mr.  Gansevoort, 
while  in  the  act  of  swaying  up  the  mast  ? 

A.  I  did,  I  think;  I  was  two  or  three 
feet  from  him. 

Q.  Did  the  men,  when  called  to  sway  the 
mast,  act  in  any  peculiar  manner  ?  If  so, 
describe  it. 

A.  I  can't  say  that  they  did. 

Q.  When  Mr.  Rogers  or  Mr.  Perry  an- 
swered Mr.  Gansevoort,  did  the  explanation 
seem  to  satisfy  Mr.  Gansevoort,  or  did  he 
make  any  further  remark  about  the  noise  to 
the  crew  ? 

A.  It  did  seem  to  satisfy  him ;  I  can't 
say  that  I  heard  him  make  any  remark. 

Q.  Did  you  see  Cromwell  arrested  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  the  conversation  that 


118 


PROCEEDINGS  OF  THE 


passed  then  between  Cromwell  and  the 
commander  and  other  officers  ? 

A.  I  did  not. 

Q.  After  the  mast  was  carried  away,  did 
you  come  on  deck,  and  if  so,  how  quickly  ? 

A.  As  soon  as  I  heard  the  noise  I  came 
up. 

Q.  Did  you  notice  Cromwell  then,  and  if 
so,  what  was  he  about  ? 

A.  The  first  I  saw  of  him,  he  was  aloft ; 
I  think  he  was  taking  out  the  heel  of  the 
mast,  to  send  it  on  deck. 

Q.  Did  he  appear  idle  or  busy  ? 

A.  He  was  speaking  to  Anderson,  who 
was  aloft  with  him  when  I  saw  him. 

Q.  Could  you  hear  what  Cromwell  said 
to  Anderson  1 

A.  I  heard  his  voice,  but  not  what  he 
said. 

BY  CAPTAIN   DOWNES. 

Q.  Could  you  see  what  Cromwell  was 
doing,  or  whether  he  was  doing  anything  ? 

A.  He  was  doing  nothing  ;  he  was  speak- 
ing to  Anderson ;  I  could  see  what  he  was 
doing. 

BY  THE  JUDGE  ADVOCATE. 

Q.  After  Cromwell  and  Anderson  were 
talking,  did  Anderson  come  from  aloft  ? 

A.  He  came  down, but  not  immediately; 
I  can't  say  how  long. 

Q.  Did  Anderson  return  aloft  ? 

A.  I  don't  know  whether  he  did  or  not. 

Q.  Did  you  see  Anderson  take  a  tail- 
block  aloft  ? 

A.  No,  sir. 

Q.  You  first  said  that  Cromwell  was 
taking  out  the  heel  of  the  mast,  and  then 
that  Cromwell  was  doing  nothing ;  explain 
yourself  ? 

A.  I  understood  Commodore  Downes  to 
ask  me  what  he  was  doing,  at  the  time  he 
was  speaking  to  Anderson. 

Q.  When  you  first  noticed  Cromwell, 
was  he  or  not  taking  the  heel  of  the  mast 
out,  or  is  that  a  mere  supposition  of  yours  ? 

A.  When  I  first  noticed  him  he  was  talk- 
ing to  Anderson ;  I  don't  think  I  looked 
aloft  after  that  until  the  heel  of  the  mast  was 
down. 

Q.  Did  you  hear  any  talk  about  rescuing 
the  prisoners,  from  the  first  confinement  of 
Mr.  Spencer? 

A.  No,  sir,  I  heard  no  such  talk  ;  I  heard 
some  of  the  boys  say  that  Cromwell  arid 
Small  would  be  arrested  as  soon  as  they 
came  from  aloft. 


Q.  While  the  persons  were  in  irons,  die 
the  men  gather  in  knots ;  and  if  so,  wl 
would  they  talk  about  ? 

A.  I  heard  no  talk  about  taking  the  vej 
sel ;  they  would  spin  yarns  in  knots  ;  I  heai 
nothing  else. 

Q.  Were  you   and  Cromwell   on    g( 
terms  ? 

A.  I  can't  say  we  were. 

Q.  Did  Mr.  Spencer  ever  speak  aboi 
mutiny  to  you,  or  of  taking  the  brig  ? 

A.  No,  sir. 

Q.  Do  you  know  where  Wilson  got 
dirk? 

A.  I  think  of  M'Kinley ;  he  told  me 
gave  M'Kinley  fifty  cents  for  it. 

Q.  Do  you  know  where  M'Kinley  got  it 

A.  It  was  in  Africa ;  I  think  at  Car 
Mesurado. 

Q.  Do  you  know  who  M'Kinley  got  it 
from  ? 

A.  I  think  he  fetched  it  off  himself ;  when 
he  got  out  of  the  boat,  he  said  he  had  bought 
it,  and  had  it  with  him. 

Q.  Have  you  ever  seen  Mr.  Spencer, 
Cromwell,  and  Small,  all  thre-e,  in  conver- 
sation at  the  same  time  ? 

A.  I  have  not,  I  think. 

Q.  Did  you  ever  see  Cromwell  showing 
Mr.  Spencer  how  to  work  a  day's  work  ? 

A.  No,  sir. 

Q.  Did  you  ever  see  Mr.  Spencer  drunk 
at  breakfast  time,  and  staggering  ? 

A.  No,  sir. 

BY  COMMANDER  MACKENZIE. 

Q.  Did  the  commander,  when  he  read 
the  letters,  of  which  you  have  spoken  as 
being  found  in  Mr.  Spencer's  locker,  also 
read  a  letter  from  Small's  mother,  found  in 
Small's  bible  ? 

A.  Yes,  sir. 

Q.  Do  you  recollect  whether  the  com- 
mander said  anything  to  the  crew,  as  to  his 
object  in  reading  the  letters  of  which  you 
have  spoken  ? 

A.  Yes,  sir  ;  he  said  he  would  read  them 
to  them,  to  show  the  character  of  the  young 
man  who  had  either  led  them  astray,  or  tried 
to  do  so. 

Q.  The  judge  advocate  has  asked  you 
whether  you  and  Cromwell  were  good 
friends,  and  you  have  said  you  were  not ; 
state  why  you  were  not. 

A.  One  day,  Mr.  Gansevoort  ordered  tl 
carpenter  to  corne  to  me  to  go  below  in  tl 
hold  and  break  out  for  a  chock,  or  a  pie< 


NAVAL  COURT  MARTIAL. 


119 


of  wood  to  make  one  ;  I  went  below  with 
the  carpenter,  and  went  to  breaking  out  the 
hold  ;  I  went  to  the  forepeak  and  broke  out 
there — got  considerable  wood  out,  and  made 
quite  a  pile  ;  as  I  was  getting  it  out,  a  stick 
rolled  down  from  the  pile  and  struck  Crom- 
well on  the  foot ;  I  think  with  that  he  raised 
a  stick  of  wood  and  threw  it  at  me  ;  it  missed 
me  ;  I  dodged  ;  he  picked  up  another,  and 
swore  he  would  throw  it  through  me,  if  he 
hung  to  the  main-yard  the  next  minute  for 
it ;  he  was  about  to  throw  it,  when  Dickin- 
son halloed  at  him  from  the  spar-deck  ;  he 
then  put  the  stick  down  ;  I  explained  that  it 
was  an  accident,  and  he  swore  he  would 
throw  it  through  me,  if  he  hung  at  the  main- 
yard  for  it  the  next  minute. 

BY  THE  JUDGE  ADVOCATE. 

Q.  About  what  part  of  the  cruise  was 
this? 

A.  I  think  it  was  before  we  made  Cape 
Mesurado. 

BY  COMMANDER  MACKENZIE. 

Q.  Do  you  know  whether  it  was  the  ob- 
ject of  the  commander  in  reading  those  let- 
ters, to  assist  in  restoring  the  crew  to  their 
duty? 

A.  I  think  he  stated  that  that  was  his  ob- 
ject. 

The  testimony  of  Joseph  Sears  was  here 
closed  ;  his  evidence  was  read  to  him,  and 
corrected  by  him. 

Sergeant  Garty  was  then  called,  and  be- 
ing duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

EXAMINED  BY  COMMANDER   MACKENZIE. 

Q.  What  is  your  name,  your  age,  your 
rank  ?  Were  you  on  board  the  Sorners  on 
her  last  cruise  ? 

A.  My  name  is  Michael  H.  Garty,  my 
age  29  next  September ;  I  was  on  board  of 
the  Somers  in  her  last  cruise  as  orderly 
sergeant  of  the  marine  corps,  doing  the  du- 
ty of  master-at-arms. 

Q.  How  soon  after  the  arrest  of  Mr. 
Spencer  did  you  see  Cromwell  and  Small  ? 
Where  were  they  then,  and  what  was  their 
demeanor  ? 

A.  They  were  forward  of  the  mainmast, 
rather  on  the  starboard  side,  on  the  berth- 
deck  ;  they  were  in  close  conversation ; 
when  I  went  aft  they  separated  ;  this  was 
between  three  fourths  of  an  hour  and  an 
hour. 


Q.  Have  you  ever  had  any  conversation 
with  Mr.  Spencer  with  regard  to  taking  the 
Somers  ? 

A.  Yes,  sir  ;  he  had  a  conversation  with 
me  ;   [  was  sitting  on  the  forehatch.     Mr. 
Spencer  came  to  me,  and  asked  me,  if  I 
was  to  go  ashore  to  do  duty,  if  I  would  not 
be  reduced  to  the  ranks  again.     I  told  him, 
not  unless  I  committed  a  crime.    He  asked 
me  if  I  was  not  made  sergeant  for  the  pur- 
!  pose  of  going  aboard  to  do  duty  as  master- 
!  at-arms.    I  told  him  I  was  ;  and  he  changed 
I  his  discourse  by  saying  she  was  a  fine  ves- 
sel;  I  told  him.  she  was.    He  said  he  could 
I  take  her  with  six  men  ;  I  told  him  he  would 
I  not  do  it  with  three  times  six.     He  said  he 
|  would  secure  the  captain  and  officers  first, 
!  take  possession  of  the   arms,   and  turn  up 
i  the  crew,  and  when  they  saw  his  men  in 
!  arms,  he  made  no  doubt  that  they  would 
give  in  immediately.     I  said,  after  he  had 
taken  possession  of  the  arms  and  turned  up 
the  crew,  we  could  make  a  rush  on  him ; 
there  might  not  be  more  than  six  killed,  and 
we  could  throw  him  and  his  six  men  over- 
board ;  that  he  must  think  us  a  very  poor 
crew,  that  he  could  take  us  with  six  men. 
"  Oh,  no,"  says  he,  or  something  to  that  ef- 
fect, as  he  went  off. 

Q.  Did  Mr.  Spencer  ever  say  anything 
to  you  about  the  place  where  the  keys  of 
the  arm-chest  were  kept  ? 

A.  Yes,  sir ;  he  said  he  could  take  the 
vessel,  provided  he  knew  where  everything 
lay  as  well  as  I  did,  particularly  the  key  of 
the  arm-chest. 

Q.  Did  Mr.  Spencer  ever  say  anything 
to  you  about  soon  having  a  vessel  of  his 
own  ? 

A.  Yes,  sir ;  it  was  about  the  20th  of 
November ;  I  was  sitting  on  the  combings 
of  the  forescuttle  ;  Mr.  Spencer  was  sitting 
near  me.  There  were  a  number  of  the  crew 
near  ;  they  were  talking  about  one  thing  or 
another,  and  the  army  was  introduced.  I 
asked  Mr.  Spencer  if  it  was  not  better  for 
him  to  join  the  army  than  the  navy.  He 
said  his  father  told  him  he  would  get  him  a 
lieutenant's  commission  in  the  dragoons  : 
he  thought  he  would  not  like  it ;  that  he 
was  not  going  to  be  long  in  the  navy  ;  that 
he  was  going  to  have  a  vessel  of  his  own 
shortly. 

Q.  Did  Mr.  Spencer  ever  ask  you  any- 
thing about  the  condition  of  the  small  arms  ? 
A.  Yes,  sir ;  I  think  it  was  on  the  19th 


120 


PROCEEDINGS  OF  THE 


of  November  Mr.  Gansevoort  sent  one  of 
the  boys  to  call  me  out  of  my  hammock ;  I 
went  up  and  reported  myself  to  him  on  the 
quarter-deck.;  he  ordered  me  to  take  out  the 
arms  and  load  them  ;  I  believe  it  was  23 
muskets  and  28  pistols  that  were  loaded, 
but  not  primed — that  was  done  by  me  and 
one  of  the  gunner's  mates.  It  was  a  day  or 
two  after  this  that  Mr.  Spencer  asked  me 
if  all  the  arms  were  loaded ;  I  said  all  but 
six  or  seven  muskets ;  he  asked  me  why 
they  were  not  loaded  ;  I  told  him  that,  if 
they  were  all  loaded  and  pointed  aft,  they 
would  not  fit  in  the  arm-chest ;  he  asked 
me  then  the  situation  of  them  in  the  chest ; 
I  told  him  those  that  were  loaded  were 
pointing  aft,  and  those  that  were  not,  for- 
ward. Two  days  after  that  he  asked  me 
about  the  arms  again  ;  I  told  him  the  same 
as  I  did  before,  and  he  made  the  remark, 
that  they  were  not  primed ;  I  told  him  not. 
I  recollect  of  no  other  conversation  with 
Mr.  Spencer. 

Q.  Did  Cromwell  ever  give  you  some 
money  to  keep  ? 

A.  Yes,  sir  ;  he  gave  me  fifteen  dollars, 
along  with  sundry  other  articles  he  drew 
of  the  purser,  a  looking-glass,  fine-tooth 
comb,  and  some  needles  and  thread  ;  there 
was  a  drawer  in  this  looking-glass,  where 
the  whole  were  placed.  This  was  before 
we  got  to  Madeira. 

Q.  Did  Cromwell  ask  you  for  his  mon- 
ey ?  and  if  so,  when  ?  what  did  he  say  ? 

A.  A  few  days  before  the  arrest  of 
Cromwell,  he  was  at  the  storeroom  bulk- 
head ;  as  I  went  forward,  Cromwell 
said,  "  Master-at-arms,  I  want-  my  glass,  I 
am  going  to  shave."  I  am  of  opinion  he 
did  not  shave  since  we  got  the  last  draft 
of  boys  and  men  before  we  started  ;  there 
was  a  barber  told  off  then  ;  Sears  was  the 
barber  ;  Cromwell  brushed  up  his  whiskers 
and  took  the  glass  into  the  storeroom  ;  I 
took  no  note  of  him  farther.  When  I 
brought  the  glass  to  him,  I  pulled  out  the 
drawer  and  showed  him  the  money ;  he 
said  it  was  all  right ;  he  did  not  ask  me 
to  take  any  further  charge  of  any  of  his 
things. 

Q.  Did  you  at  any  time  hear  Warner  say 
what  would  become  of  the  officers  if  there 
was  to  be  a  general  rush  aft  of  the  crew. 
If  so,  state  when,  where,  and  all  that  oc- 
curred ? 

A.  It  was  on  the  morning  of  the  27th  of 


November,  Warner  made  the  remark  whei 
lashing  his  hammock  that  the  officer  of  the 
deck  was  armed  with  a  pair  of  pistols,  am 
the  officer  of  the  forecastle  with  one  ; 
said  they  were,  and  I  thought  it  no  more 
than  what  was  necessary ;  he  said,  what 
could  they  do  if  we  made  a  rush  on  them  ii 
the  mid-watch,  I  told  him  if  they  did  thir- 
teen or  fourteen  would  drop.  It  ended  there. 
On  or  about  the  6th  of  November,  I  hean 
Mr.  Spencer  ask  Cromwell  how  he  wouh 
like  to  sail  with  him,  Cromwell  said  h( 
would  like  it  well;  Mr.  Spencer  said  it 
might  make  an  alteration  in  him  to  have 

|  command,  but  that  he  (Cromwell)  might  not 

i  take  notice  of  that. 

CROSS-EXAMINED     BY    JUDGE     ADVOCATE. 

Q.  When  was  it  Mr.  Spencer  talked  to 
you  about  being  reduced  to  the  ranks  ? 

A.  On  the  passage  between  Madeira  and 
TenerifTe. 

Q.  Was  any  one  by  ? 

A.  No,  sir. 

Q.  Do  you  remember  when  you  were 
coming  down  on  the  brig  America  ? 

A.  Before  we  made  the  Azores  there 
was  a  brig  we  came  down  on. 

Q.  Do  you  remember  the  day  of  the 
month  of  this  talk  about  being  reduced  to 
the  ranks  ? 

A.  I  can't  recollect  the  date ;  it  was  be- 
tween the  5th  and  llth  of  October. 

Q.  Did  you  hear  Mr.  Spencer  talk  about 
having  the  launch  full  of  men,  and  taking 
|  the  brig  America  ? 

A.  No,  sir. 

Q.  Have  you  not  often  heard  Mr.  Spencer 
talk  about  boarding,  and  taking  vessels  1 

A.  No,  sir. 

Q.  When  Mr.  Spencer  asked  Cromwell 
if  he  would  like  to  sail  with  him,  did  he 
not  ask  how  much  a  vessel  would  cost  ? 

A.  No,  sir  ;  not  that  I  heard. 

Q.  Did  you  hear  anything  said  of  five 
thousand  dollars  ? 

A.  No,  sir ;  nothing  by  Mr.  Spencer  or 
Cromwell. 

Q.  Did  Cromwell  ask  how  he  was  to  get 
a  vessel  ? 

A.  No,  sir, 

Q.  Did  Mr.  Spencer  say  anything  to 
show  where  he  was  to  get  a  vessel  ? 

A.  No,  sir,  he  did  not. 

Q.  Had  not  Mr.   Spencer  told  you  that 


NAVAL  COURT  MARTIAL. 


121 


,vhen  lie  got  home  he  meant  to  leave  the 
lavy? 

A.  No,  sir. 

Q.  Who  was  by  when  you  told  Mr. 
Spencer  he  had  better  go  to  the  army  ? 

A.  I  don't  recollect  of  any  one  but  Crom- 
well ;  there  were  a  number  forward. 

Q.  Why  were  the  arms  loaded  ? 

A.  I  don't  exactly  know.  I  believe  a 
/essel  was  chasing  the  Somers  ;  that  was 
;he  reason. 

Q.  When  were  you  on  the  sick  list  in 
;he  cruise  ? 

A.  I  was  twice  on  the  list ;  the  last  time 
1  about  two  days.  I  was  in  my  hammock  when 
iMr.  Spencer  was  arrested.  I  complained 
1  to  the  doctor  before  I  went  on  the  list. 

Q.  Where  was  Mr.  Spencer  when  he 
asked  you  the  second  time  about  the  arms  ? 

A.  Forward,  on  the  larboard  side. 

Q.  Was  any  one  near? 

A.  I  did  not  take  notice. 

Q.  What  were  you  doing  at  the  time  ? 

A.  I  believe  I  was  on  my  way  to  the 
head. 

Q.  What  time  of  the  day  was  this  ? 

A.  About  half-past  two  o'clock,  I  believe. 

Q.  What  was  Mr.  Spencer  about  when 
you  saw  him  then  on  the  deck  ? 

A.  He  was  standing  by  himself,  pretty 
close  to  the  gallows  on  the  larboard  side, 
forward  of  the  forehatch. 

Q.  Did  he  hail  you  as  you  went  by  ? 

A.  Yes,  sir,  he  hailed  me  by  asking  the 
question. 

Q.  Try  and  give  his  words. 

A.  "  Master-at-arms,"  says  he,  "  are  all 
the  arms  loaded;"  as  near  as  I  can  recol- 
lect. 

Q.  Did  he  speak  in  his  usual  tone  ? 

A.  Yes,  sir. 

Q.  What  sort  of  weather  was  it  1 

A.  The  weather  was  good,  I  think  it  was 
a  fine  day. 

Q.  Who  was  the  forward  officer  on  duty 
at  the  time  ? 

A.  I  don't  recollect ;  he  was  not  to  the 
best  of  my  opinion ;  there  was  no  officer 
on  that  side  any  way. 

Q.  Was  there  not  great  stir  and  excite- 
ment in  the  ship  when  the  cruiser  chased 
you? 

A.  Not  that  I  observed  ;  that  night  the 
hold  was  broke  out  in  search  of  wads. 

Q.  Did  not  the  boys  help  to  make  wads? 

A.  Yes,  sir;  there  were  some  made, 
16 


some  junks  spliced  together  in  the  form  of  a 
ring. 

Q.  Had  the  arms  and  equipments  been 
in  order  at  the  time,  or  were  you  not  in 
want  of  wads  1 

A.  Our  wads  were  short,  the  small  arms 
were  not  loaded. 

Q.  Was  not  this  the  time  Mr.  Spencer 
was  talking  how  easily  the  ship  could  be 
taken  ? 

A.  No,  sir;  not  talking  to  me  at  this 
time. 

Q.  Did  you  ever  mention  to  anyone  Mr. 
Spencer's  conversation  till  you  heard  Wales' 
statement  as  to  Mr.  Spencer's  plan  ? 

A.  No,  sir ;  because  I  had  no  suspicion 
of  him. 

Q.  Whom  did  you  first  tell  of  it  ? 

A.  The  night  Mr.  Spencer  was  arrested 
I  told  Mr.  Gansevoort  of  it. 

Q,  When  did  Wales  tell  you  his  state- 
ment? 

A.  Wales  never  told  me  anything  about 
his  statement.  I  heard  him  read  it  on 
the  quarter  deck.  I  am  not  sure  whether 
Wales  read  it  or  not. 

Q.  Whom  did  you  first  hear  of  the  mutiny 
from  ? 

A.  I  can't  exactly  say  who  ;  I  heard  it 
on  the  berth-deck  from  the  boys  ;  I  was  in 
my  hammock  ;  it  was  on  the  evening  of  the 
29th  of  November. 

Q.  What  did  you  hear  then  ? 

A.  I  heard  the  boys  say  Mr.  Spencer 
was  going  to  take  the  brig  and  turn  her  into 
a  pirate. 

Q.  Was  it  said  how  he  intended  to  do  it  ? 

A.  I  did  not  hear  that  evening  ;  the  next 
day  I  heard  that  they  were  to  kick  up  a 
sham  fight  on  the  forecastle  :  Mr.  Spencer 
was  to  take  them  aft,  call  the  officer  of 
the  deck  and  throw  him  overboard,  and  then 
go  into  the  cabin  and  kill  the  captain  ;  and 
from  that  to  the  wardroom,  and  kill  the 
wardroom  officers  ;  then  slew  the  two  after- 
guns  round,  and  turn  up  the  crew.  He  was 
to  select  from  the  crew  such  persons  as  he 
wanted,  and  make  the  rest  walk  the  plank. 

Q.  Was  anything  told  you  about  the  arms 
then? 

A.  No,  sir  ;  this  I  heard  among  the 
crew.  « 

Q.  Anything  said  about  throwing  the 
launch  overboard  or  spars  ? 

A.  No,  sir  ;  I  heard  nothing, 

Q.  Was  this  general  talk? 


122 


PROCEEDINGS  OF  THE 


Q.  I  heard  some  of  the  boys  saying  it. 

Q.  What  time  of  the  day  was  it,  that  you 
heard  this  ? 

A.  In  the  forepart  of  the  day,  after  Mr. 
Spencer's  arrest,  I  heard  how  he  was  to 
take  her  ;  the  evening  before  I  heard  he 
was  to  take  her  and  turn  her  into  a  pi- 
rate. 

Q.  Was  it  said  on  the  first  evening  who 
were  with  him,  or  how  many  ? 

A.  No,  sir. 

Q.  Was  anything  of  this  said  next  day  ? 

A.  No,  sir. 

Q.  Did  you  remain  in  your  hammock 
the  evening  of  Mr.  Spencer's  arrest  ? 

A.  Yes,  sir  ;  I  was  in  and  out  of  it  all 
that  night. 

Q.  Who  was  by  when  you  first  told  Mr. 
Gansevoort.  of  your  conversation  with  Mr. 
Spencer  ? 

A.  I  went  into  the  steerage  and  told  him 
all  the  conversations  I  heard;  I  did  not 
think  a  gentleman  would  have  anything  to 
do  with  taking  the  vessel ;  Mr.  Gansevoort 
sent  out  for  me  to  give  me  back  the  key  of 
the  chest  the  irons  were  kept  in  ;  I  had  giv- 
en it  to  Selsor  to  get  out  the  irons,  and  I  had 
this  conversation  then.  I  believe  Mr.  Heis- 
kill  and  the  doctor  were  there  ;  I  don't  know 
that  they  heard  what  I  said. 

Q.  Was  young  Mr.  Perry  by,  or  Mr. 
Delonde,  or  Mr.  Tillotson  ? 

A.  Not  that  I  saw,  or  can  recollect. 

Q.  Did  not  young  Mr.  Perry  tell  you 
what  Mr.  Spencer  was  to  be  ironed  for  ? 

.A.  No,  sir ;  he  did  not. 

Q.  Did  not  Mr.  Gansevoort  tell  you  what 
Mr.  Spencer  was  to  be  ironed  for  ? 

A.  No,  sir. 

Q.  Did  you  tell  any  one  before  you  went 
in  to  Mr.  Gansevoort  of  your  conversation 
with  Mr.  Spencer  ? 

A.  No,  sir  ;  I  did  not. 

Q.  Had  you  heard  before  you  went  in  to 
Mr.  Gansevoort  what  Mr.  Spencer  was  ar- 
rested for  ? 

A.  Yes,  sir. 

Q.  How  long? 

A.  A  few  minutes. 

Q.  Can't  you  recollect  who  you  heard  it 
from  ? 

A.  No,  sir  ;  I  can  not. 

Q.  Was  Mr.  Spencer  then  ironed  ? 

A.  Yes,  sir. 

Q.  How  long  had  he  been  ironed  ? 

A.  About  twenty  minutes,  or  half  an  hour, ' 


I  believe ;  during  the  time  he  was  ironed, 
the  chest  was  removed. 

Q.  Who  moved  the  chest  ? 

A.  I  recollect  seeing  Cromwell  have  a 
hand  in  it — principally  the  petty  officers — 
may  be  the  stoutest  of  the  boys. 

Q.  Were  they  all  talking  about  Mr.  Spen- 
cer's arrest? 

A.  No,  sir;  they  were  not. 

Q.  When  did  you  first  stand  guard  over 
Mr.  Spencer? 

A.  I  believe  on  the  night  of  the  27th. 

Q.  When  did  you  first  hear  of  the  papers 
found  in  Mr.  Spencer's  locker  ? 

-4.  I  can't  recollect;  I  think  before  th 
execution  ;   I  can't  say  what  day  ? 

Q.  Did  you  help  to  keep  the  bags  on  th 
prisoners  the  first  night  they  were  put  on  ? 

A.  They  were  put  in  bags  one  night  du 
ring  my  watch ;  I  did  not  assist ;  I  saw  it 
done. 

Q.  Who  put  them  on  the  first  night  ? 

A.  I  don't  recollect. 

Q.  Were  the  bags  put  over  head  and  all 
the  first  time  they  were  put  on  ? 

A.  I  don't  recollect  seeing  the  bags  over 
the  heads  of  any  but  M'Kee. 

Q.  When  was  the  bag  put  over  the  head 
of  M'Kee — before  your  arrival  at  St.  Thorn 
as,  or  not  ? 

A.  I  think  it  was  after. 

Q.  Was  it  not  put  over  the  first  night  he 
wore  one  ? 

A.  One  night,  on  examining  the  prison- 
ers on  my  watch,  I  found  M'Kee  coiled  up 
in  his  bag,  the  drawing-string  loose  ;  I  think 
he  pulled  it  up  himself. 

Q.  Did  you  not  hear  M'Kinley  complain 
of  his  head  being  enclosed  in  the  bag  the 
first  night  it  was  on  ?  and  did  he  not  ask 
word  to  be  taken  to  the  officer  of  the  deck 
to  be  relieved  ? 

A.  No,  sir. 

Q.  Were  not  Anderson  and  Rogers  tho 
persons  who  put  on  M'Kinley's  bag  the  first 
night  ? 

A.  I  don't  know. 

Q.  Were  you  not  standing  by  when  the 
bag  was  put  on  M'Kinley  the  first  night? 

A.  I  don't  recollect. 

Q.  Do  you  say  the  bag  string  was  not 
drawn  so  as  to  prevent  M'Kee  putting  out 
his  head  ? 
^4..  I  do,  sir. 

A.  How  long  was  it  after  you  left  New 
York  that  Cromwell  gave  you  the  money  ? 


•s 

, 

;* 


NAVAL  COURT  MARTIAL. 


123 


A.  I  don't  recollect  the  date  ;  it  was  a 
few  days  after  we  left ;  he  said  he  would 
send  it  home  to  his  wife,  if  there  was  a 
homeward-bound  vessel  at  Madeira. 

Q.  What  time  of  the  day  was  it  that 
Cromwell  asked  for  his  glass  ? 

A.  I  believe  it  was  in  the  afternoon,  im- 
mediately after  dinner. 

Q.  Was  Cromwell's  storeroom  door  open 
then? 

A.  Yes,  sir. 

Q.  Was  Cromwell  by  at  the  storeroom  at 
the  time,  or  just  before  ? 

A.  When  I  went  forward,  he  was  sitting 
outside  the  storeroom  door,  on  the  berth- 
deck. 

Q.  Was  it  as  you  were  passing  that 
Cromwell  hailed  you  ? 

A.  I  could  not  pass  him  without  going 
into  the  storeroom. 

Q.  Where  were  you  going,  if  he  had  not 
stopped  you  ? 

A.  I  was  going  forward  to  have  the  berth- 
deck  swept  ? 

Q.  Where  had  you  kept  his  glass  ? 

A.  In  my  chest. 

Q.  Did  he  not  know  it  was  in  your 
chest  ? 

A.  He  did. 

Q.  He  never  asked  you  for  the  money, 
did  he  ? 

A.  No,  sir  ;  he  said  he  wanted  his  glass  ; 
I  showed  him  the  money. 

Q.  On  what  part  of  the  berth-deck  was 
your  chest  ? 

A..  Aft,  on  the  starboard  side. 

Q.  Did  Cromwell  remain  sitting  after  you 
went  back  for  the  glass  ? 

A.  He  was  still  sitting  when  I  brought 
him  the  glass. 

Q.  Did  you  ask  him  when  he  was  going 
to  shave  ? 

A.  No,  sir.  4* 

Q.  Did  he  tell  you? 

.A.  He  did  not. 

Q.  Was  not  you  the  first  to  speak  about 
the  money  ? 

A.  I  don't  recollect ;  I  showed  him  the 
money ;  there  were  a  ten  and  a  five  dollar 
bill ;  he  looked  at  it. 

Q.  What  did  he  say  when  you  showed 
him  the  money  ? 

A.  I  don't  recollect  what  he  said. 

Q.   Who  was  by  ? 

A.  I  can't  think  ;  I  was  in  a  hurry  to  get 
the  place  cleared  up. 


Q.  Was  he  still  sitting  when  you  showed 
him  the  money  ? 

A.  Yes,  sir. 

Q.  Did  he  tell  you  there  was  no  use  in 
counting  the  money — he  was  sure  it  was 
all  right  ? 

A.  He  could  not  be  mistaken,  there  were 
only  two  bills  ;  he  did  not  tell  me  it  was  all 
right. 

Q.  Was  it  not  you  who  spread  out  the 
bills  ? 

A.  No,  sir ;  it  was  he. 

Q.  Did  he  put  the  glass  in  the  store- 
room ? 

A.  He  went  into  the  storeroom  with  it. 

Q.  After  his  arrest,  do  you  know  where 
that  glass  was  found  ? 

A.  In  the  storeroom. 

Q.  Who  kept  the  key  of  the  storeroom  at 
night  ? 

A.  I  returned  it  every  evening  at  quar- 
ters to  the  1st  lieutenant ;  he  hung  it  up  in 
the  wardroom ;  excepting  when  I  was  sick. 

Q.  Can  you  give  any  reason  why,  in 
case  of  a  mutiny,  it  would  have  been  more 
to  Cromwell's  advantage  to  have  had  that 
glass  and  money  in  the  storeroom,  than  in 
your  chest  ? 

A.  Because  in  my  opinion  he  intended 
to  dispose  of  me  otherwise. 

Q.  Do  you  think  he  intended  to  dispose 
of  you  and  chest  together  ? 

A.  Not  exactly  the  chest,  that  might  re- 
main ;  but  I  would  go. 

Q.  Was  yours  a  heavy  chest  ? 

A.  I  had  a  pretty  good  kit ;  the  chest 
was  full. 

Q.  Did  he  smile  when  he  brushed  up  his 
beard  and  whiskers  ? 

A.  I  did  not  see  him  brush  his  beard,  it 
was  his  whiskers. 

Q.  Was  not  the  hair  on  his  face  all  of  a 
length  ? 

A.  I  can't  exactly  say  ;  he  wore  a  large 
pair  of  whiskers ;  he  shaved  round  his 
mouth. 

Q.  Did  you  not  say  he  had  been  un- 
shaved  since  you  left  the  United  States  ? 

A.  I  said  he  had  not  shaved  himself,  the 
barber  shaved  him. 

The  examination  of  Sergeant  Garty  was 
here  suspended  ;  his  evidence  was  read  to 
him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Thursday),  March  2,  at  10  o'clock, 
A.  M. 


124 


PROCEEDINGS  OF  THE 


NAVY  YARD,  j> 

Brooklyn,  Mar chl,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 

Read, 

"       Bolton, 
"       Turner, 
"       Sloat, 
"       Storer, 


Page, 
Gwinn, 
"        Wyman, 
Com'dr  Ogden, 
"        Shubrick, 

Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Sergeant  Garty  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  "Was  not  Sears  the  skip's  barber,  and 
had  not  Cromwell  and  he  quarrelled  shortly 
before  his  asking  you  for  his  glass  ? 

A.  He  was  ship's  barber;  they  had  not 
quarrelled  to  my  knowledge. 

Q.  Between  the  5th  and  llth  of  Octo- 
ber was  it,  that  Mr.  Spencer  told  you  he  did 
not  expect  long  to  be  in  the  navy  1 

A.  No,  sir  ;  it  was  about  the  20th  of  No- 
vember. 

Q.  Was  it  not  when  you  were  talking 
about  the  army  ? 

A.  Yes,  sir. 

Q.  Had  the  small  arms  not  been  fre- 
quently used,  in  firing  for  exercise,  on  the 
cruise  before  the  arrest  ? 

A.  Yes,  sir ;  twice  with  the  muskets, 
the  pistols  once. 

Q.  Had  they  ever  been  placed  in  the 
arm-chest  loaded  before  the  19th  of  No- 
vember ?  . 

A.  No,  sir. 

Q.  Have  you  not  said  that  Mr.  Spencer's 
first  talk  about  taking  the  brig,  and  referring 
to  the  arm-chest  and  keys,  was  between  the 
5lh  and  llth  of  October? 

A.  Yes,  sir ;  he  said  then,  provided  he 
knew  where  everything  lay  ;  that  was  be- 
tween the  5th  and  llth  of  October. 

Q.  Where  were  the  cartridges  for  the 
small  arms  kept  ? 

A.  The  cartridges  were  kept  in  the  arm- 
chest,  in  cartridge-boxes. 

Q.  Were  the  weapons  fiinted  ? 
A.  Yes,  sir. 


Q.  Where  were  the  axes  and  cutlasses 
kept? 

A.  The  cutlasses  in  the  starboard  arm- 
chest — the  axes  in  the  racks. 

Q.  How  long  would  it  take  the  unprac 
tised  seamen  and  boys  to  load  arms  ? 

A.  I  guess  they  could  load  a  piece  and 
fire  it  in  a  minute. 

Q.  With  the  arms  unloaded,  and  the 
equipments  placed  as  they  were  between 
the  5th  and  1 1th  of  October,  how  long  would 
it  take  you  in  the  night  to  get  out  a  piece 
and  charge  and  discharge  it  ? 

A.  If  I  had  the  key,  I  could  unlock  the 
chest,  take  out  a  musket,  load  it,  and  fire  it 
in  a  minute  and  a  half. 

Q.  When  Mr.  Spencer  was  talking  to 
you  about  taking  the  brig,  did  he  speak 
about  the  battle-axes  ? 

A.  No,  sir. 

Q.  Were  there  not  abundance  of  hand- 
spikes, battle-axes,  and  belaying-pins,  not 
locked  up,  for  evil-disposed  persons  to  use, 
if  inclined  to  murder  ? 

A.  Yes,  sir  ;  the  battle-axes  were  in  the 
racks,  the  hand-spikes  in  the  hold ;  I  no- 
ticed none  on  deck;  the  belaying  pins  were 
on  deck. 

Q.  Did  you  tell  Mr.  Spencer  why  you 
pointed  the  loaded  guns  aft  ? 

A.  No,  sir — only  what  I  have  stated. 

Q.  Did  you  not  put  them  so,  so  as  to 
avoid  accidents  ? 

A.  I  was  ordered  to  point  them  so,  and  I 
obeyed. 

Q.  What  countryman  are  you  ?  When 
and  where  did  you  enlist  ? 

A.  I  am  an  Irishman  by  birth — enlisted 
in  the  marine  corps,  in  Brooklyn,  4th  of 
April  last. 

BY    COMMANDER    MACKENZIE. 

Q.  When  you  came  on  board  the  Somers, 
to  perform  the  duty  of  master-at-arms,  did  the 
commander  give  you  orders  to  perform  your 
duty  with  the  least  possible  collision  with 
the  crew,  and  with  the  fewest  possible  re- 
ports 1 

A,  Yes,  sir. 

Q.  When  reports  were  made  by  you,  for 
disorderly  conduct,  did  the  commander  give 
delinquents  every  opportunity  of  proving  their 
innocence,  and  endeavor,  if  possible,  to  avoid 
inflicting  punishments  ? 

A.  He  did. 


NAVAL  COURT  MARTIAL. 


125 


"  MAY  IT  PLEASE  THE  COURT  :  Testimony 
having  been  elicited  as  to  certain  private 
letters  of  Midshipman  Spencer,  which  were 
read  to  the  crew  of  the  Somers  with  a  view, 
as  it  has  appeared  in  evidence,  of  disabusing 
their  minds  concerning  the  individuals  who 
had  been  instrumental  in  seducing  them  from 
their  fidelity,  and  as  one  of  the  means  within 
my  power  of  restoring  them  to  subordina- 
tion, I  respectfully  submit  to  the  court  the 
following  official  letter,  explanatory  of  the 
circumstances  under  which  these  letters 
came  into  my  possession. 

"  The  answer  to  that  letter  I  abstain  from 
offering  to  the  court,  as  it  conflicts  with  a 
decision  of  the  court  already  made. 

"  Very  respectfully  submitted,  by  your 
most  obedient, 

"ALEX.  SLIDELL  MACKENZIE, 

"  Comd'r  U.  S.  Navy.'" 

"U.  S.  BRIG  SOMERS,       ) 
"3d  December,  1842.  $ 

"  GENTLEMEN  :  You  will  proceed  to  make 
a  careful  examination  of  the  effects  of  the 
late  Acting-Midshipman  Philip  Spencer,and 
take  a  correct  inventory  of  them.  In  doing 
so,  yon  will  strictly  search  all  his  journals 
and  papers  of  every  nature  that  may  be  found 
among  his  effects,  for  the  purpose  of  detect- 
ing, if  possible,  at  how  early  a  date  he  had 
formed  the  design  of  creating  a  mutiny  on 
board  this  vessel,  capturing  her,  and  con- 
verting her  into  a  pirate.  In  searching  his 
papers,  when  you  come  to  any  from  his  im- 
mediate family,  you  will  carefully  avoid 
perusing  any  mere  domestic  details,  and 
glance  onward  to  observe  if  there  be  any 
allusion  to  the  previous  crimes  of  the  de- 
ceased, or  cautions  against  his  vicious  pro- 
pensities. All  other  letters  than- those  from 
his  immediate  family  you  will  carefully  scru- 
tinize, and  report  the  result  to  me  in  wri- 
ting. 

"  I  am  respectfully,  gentlemen,  your  most 
obedient, 

"  ALEX.  SLIDELL  MACKENZIE, 

"  Comd'r  U.  S.  Navy." 
"Purser  H.W.  Heiskill,  Midshipman  Egbert 
Thompson,  Acting-Midshipman   Adrien 
Delonde,  U.  S.  Navy. 

John  S.  Wetmore  was  then  called,  and 
being  duly  sworn  by  the  president,  of  the 
court,  testified  as  follows  :— 


EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  your  age,  your 
rank  ?  Were  you  on  board  the  Somers  in 
her  last  cruise  ? 

A.  My  name  is  John  S.  Wetmore,  my 
age  19  years  ;  I  was  on  board  of  the  Somers 
in  her  last  cruise  as  landsman. 

Q.  Subsequent  to  the  arrest  of  Mr.  Spen- 
cer, did  you  hear  M'Kee  say  anything  about 
Mr.  Spencer's  taking  the  brig  ? 

A.  Yes,  sir;  I  heard  him  say  he  rather, 
or  he  wished  Mr.  Spencer  had  succeeded 
in  taking  the  brig— that  he  rather  lead  such 
a  life  than  live  ashore  ;  I  told  him  he  was 
foolish  in  talking  that  way ;  that  is  all  for 
that  time. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  hear  any  talk  of  releasing 
the  prisoners  while  they  were  in  confine- 
ment? 

A.  No,  sir,  I  did  not. 

Q.  Did  you  ever  hear  any  talk  by  Mr. 
Spencer  about  getting  a  vessel  ? 

A.  I  heard  him  say  to  Cromwell  he  would 
have  command  of  a  vessel  before  long. 

Q.  Where  did  this  talk  take  place  ? 

A.  Oa  the  starboard  side,  in  the  starboard 
watch. 

Q.  Were  any  of  the  boys  or  crew  by  ? 

A.  No,,  sir. 

Q.  Did  Mr.  Spencer  talk  about  how  much 
a  vessel  would  cost  ? 

A.  No,  sir. 

Q.  Why,  then,  did  you  swear  before  the 
court  of  inquiry,  that  you  judged  from  his 
conversation  that  he  was  some  wealthy 
man  ? 

A .  I  thought  he  was  going  to  buy  a  vessel, 
and  had  means  to  do  it  with. 

Q.  Have  you  not  heard  Mr.  Spencer  talk 
about  leaving  the  navy  ? 

A.  No,  sir,  I  never  did. 

Q.  When  was  it  this  talk  took  place  be- 
ween  Mr.  Spencer  and  Cromwell  ? 

A .  On  our  passage  out,  before  we  arrived 
at  Madeira. 

Q.  Did  you  hear  them  ask  the  same 
hing  of  Cromwell,  as  to  how  he  would  like 
o  sail  with  him,  a  few  days  before  his 
arrest  ? 

A.  No,  sir. 

Q.  Did  you  understand  Cromwell  as  giv- 
ng  a  decided  answer  that  he  would  sail 
with  him  ? 


126 


PROCEEDINGS  OF  THE 


A.  He  said  he  would  like  it  very  well. 

Q.  What  would  the  men  talk  about  when 
in  groups,  after  the  arrest  ? 

A.  About  the  confinement  of  Mr.  Spen- 
cer, wondering  what  it  was  for. 

Q.  When  and  where  was  your  conversa- 
tion with  M'Kee — was  anybody  by  ? 

A.  On  the  forecastle,  after  Mr.  Spencer, 
Cromwell,  and  Small,  were  confined ;  I 
don't  remember  the  day  ;  nobody  was  by. 

Q.  When  did  you  first  tell  about  either 
of  the  conversations  you  have  spoken  of  ? 

A.  I  told  it  to  one  of  the  men  the  other 
night  (last  week) ;  it  was  the  first  time  I 
ever  thought  anything  about  it — I  mean  as 
to  the  conversation  with  M'Kee. 

Q.  Had  you  not  heard  a  great  deal  to 
make  you  think  of  these  prisoners  1 

A.  No,  sir. 

Q.  When  did  you  first  tell  of  the  con- 
versation between  Mr.  Spencer  and  Crom- 
well ? 

A.  To  Mr.  Perry,  the  master,  after  we 
got  here,  and  in  the  wardroom. 

Q.  Had  you  not  then  heard  that  other 
boys  said  that  they  heard  the  same  sort  of 
talk? 

A.  I  don't  recollect  of  hearing  it. 

Q.  Had  not  a  good  many  boys  been  in 
the  wardroom  to  be  questioned  before  you 
had? 

A.  Yes,  sir. 

Q.  Do  you  say  you  had  not  told  of  the 
conversation  before  ?  was  it  this  calling  of 
boys  into  the  ward-room  that  set  you  to 
thinking  and  remembering. 

A.  I  always  had  recollected  that. 

Q.  How  is. it,  then,  that  you  did  not  men- 
tion it  before  ? 

A.  No  one  ever  said  anything  to  me 
about  it,  and  I  had  no  occasion  to  mention  it. 

The  testimony  of  John  S.  Wetmore  here 
closed;  his  evidence  was  read  to  him  and 
corrected  by  him. 

William  V.  Conger  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  your  age,  your 
rank  ?  were  you  on  board  the  Somers  in 
her  last  cruise  ? 

A.  My  name  William  V.  Conger,  my 
age  eighteen  years  ;  I  was  on  board  of  the 
Somers  in  her  last  cruise  as  second-class 
boy. 


Q.  Did  you  ever  hare  any  conversation 
with  Mr.  Spencer  about  change  in  the  com- 
mander of  the  Somers  ? 

A.  Yes,  sir. 

Q.  Did  you  ever  have  any  conversation 
with  Mr.  Spencer  about  boys  obtaining  a 
leave  of  absence  ?  if  so,  state  the  whole  of 
that  conversation. 

A.  It  was  the  night  we  were  kedged  off 
the  coast  of  Africa  ;  it  was  my  first  look- 
out at  eight  o'clock ;  as  I  was  on  my  sta- 
tion, Green,  Van  Veltzor,  and  several  others, 
came  and  went  fishing  near  where  I  was 
standing ;  Mr.  Spencer  came  shortly  after- 
ward and  commenced  a  conversation  with 
them;  he  asked  them  several  questions  about 
their  fishing  ;  they  talked  about  it  until  nine 
o'clock ;  the  master-at-arms  came  up  and 
commenced  talking  with  Mr.  Spencer  ;  they 
talked  a  spell,  and  I  asked  the  master-at- 
arms  whether  he  had  ever  been  at  Sackett's 
Harbor,  as  I  had  talked  to  him  before  about 
the  place ;  he  said  he  had  :  Mr.  Spencer 
turned  right  round ;  he  asked  me  if  I  was 
acquainted  in  that  place  and  Oswego,  I  told 
"I  was;"  he  then  asked  me  if  I  knew 
young  M'Carty  of  Oswego,  I  told  him  I 
knew  him  by  sight,  I  was  not  acquainted ; 
he  then  said  M'Carty  was  a  schoolfellow  of 
his  at  Schenectady,  at  college  ;  I  was  tel- 
ling him  I  had  not  seen  my  parents  for  a 
great  while,  and  asked  if  there  was  any 
likelihood  of  my  getting  any  liberty,  and  if 
boys  get  liberty  after  going  a  short  cruise,; 
he  said  they  sometimes  did,  and  that  if  he 
had  command  of  the  vessel,  as  he  soon 
would  have,  I  might  have  liberty. 

Q.  On  the  afternoon  of  Mr.  Spencer's 
arrest,  did  you  notice  anything  peculiar  in 
his  manner  ?  did  you  ever  hear  anything 
that  he  said  ? 

A.  He  was  standing  on  the  fore  jacob's- 
ladder,  starboard  side,  .pointing  seaward,  as 
I  was  going  forward  ;  I  heard  him  mutter 
something ;  my  hammock  was  on  the  bitts, 
I  had  to  go  after  it ;  as  I  came  back  again, 
and  as  I  passed  him,  I  heard  him  say,  "  The 
die  will  soon  be  cast :"  I  understood  that 
much. 

CROSS-EXAMINED    BY  JUDGE  ADVOCATE. 

Q.  Who  was  by  when  this  fishing  was 
going  on  but  those  you  have  named  ?  try 
and  recollect. 

A.  The  boy  Valentine  was  one,  I  do  not 
remember  any  others. 


NAVAL  COURT  MARTIAL. 


127 


Q.  Was  Mr.  Spencer  sober  ? 

A.  He  appeared  to  be. 

Q.  Did  he  seem  to  wish  to  be  kind  to 
you  about  this  leave  to  go  home  ? 

A.  I  did  not  take  notice  ;  he  did  not  ap- 
pear to  be  as  kind  to  me  as  he  was  to  the 
other  boys. 

Q.  Have  you  not  mixed  together  two  of 

Mr.  Spencer's  sentences  ?  did  he  not  say 

to  you,    "  If  I   was  commander,  I   would 

i  give  you  leave — I   will   be  a  commander 

f  shortly"  ? 

A.  No,  sir,  he  did  not  say  them  words. 

Q.  Were  you  surprised  at  what  he 
said? 

A.  I  did  not  take  much  notice  at  the 
time. 

Q.  Did  you  not  know  Mr.  Spencer  was 
a  midshipman  ? 

A.  Yes,  sir,  I  did. 

Q.  Did  you  not  know  a  midshipman 
could  not  regularly  get  command  shortly  ? 

A.  I  did  not  know ;  I  had  only  been  in 
the  service  a  few  months  ;  I  know  nothing 
about  it. 

Q.  Was  the  conversation  in  the  usual 
tone? 

A.  Yes,  sir. 

Q.  Could  the  others  hear  it  who  were  by? 

A.  I  think  they  could. 

Q,  Did  they  make  any  remark  about  it  ? 

A.  No,  sir. 

Q.  The  master-at-arms  was  still  by,  was 
he  not  1 

A.  The  master-at-arms  was  lying  three 
or  four  feet  from  us  ;  I  don't  think  he  heard 
it,  he  was  asleep. 

Q.  Had  you  not  immediately  before  been 
talking  to  the  master-at-arms  about  Sack- 
ett's  Harbor? 

A.  I  had,  before  Mr.  Spencer  commenced 
this  conversation  with  me. 

Q.  Was  it  not  your  remark  about  Sack- 
ett's  Harbor,  to  the  master-at-arms,  that  at- 
tracted Mr.  Spencer  to  talk  with  you  ? 

A.  Yes,  sir. 

Q.  Have  you  not  given  the  conversation 
that  took  place  between  you  and  Mr.  Spen- 
cer ? 

A.  Yes,  sir,  just  as  it  took  place. 

Q.  What  put  the  master-at-arms  so  quick- 
ly to  sleep  ? 

A.  I  don't  know,  I  suppose  he  was  tired. 

Q.  Was  the  master-at-arms  lying  on  the 
bare  deck  ? 

A.  On  the  hencoop. 


Q.  Did  you  expect  to  get  your  leave  of 
absence  ? 

A.  I  did  not  know  what  to  think  about  it. 

Q.  Why  did  you  not  know  what  to  think  ? 

A.  I  did  not  think  he  could  give  it  to  me 
without  the  captain's  permission  ?  I  thought 
no  more  about  it  until  I  heard  what  he  was 
arrested  for. 

Q.  Whom  did  you  first  tell  of  this  con- 
versation, and  when  ? 

A.  I  never  said  anything  about  it  until  af- 
ter we  got  into  port ;  I  told  Mr.  Gansevoort 
a  part  of  it  then. 

Q.  You  say  you  thought  it  of  it  after  Mr. 
Spencer's  arrest ;  why  did  you  not  tell  or 
mention  it  then  to  somebody  ? 

A.  I  did  not  think  it  worth  mentioning, 
until  Mr.  Gansevoort  asked  me  if  I  knew 
anything  about  Mr.  Spencer,  Cromwell,  and 
Small,  after  we  got  into  port. 

Q.  Was  it  that  question  of  Mr.  Ganse- 
voort that  made  you  think  it  worth  men- 
tioning? 

A.  Yes,  sir,  I  told  him  I  had  had  a  con- 
versation, and  he  requested  me  to  state  it. 

Q.  Had  you  not  heard  before  a  great  deal 
of  talk  about  Mr.  Spencer's  plan  and  wish 
to  get  command  of  the  Somers  ? 

A.  After  the  crew  heard  why  he  was  ar- 
rested, I  heard  a  good  deal  of  talk  about  his 
plan. 

Q.  What  sort  of  gestures  were  those  Mr. 
Spencer  was  making  to  the  seaward  on  the 
26th  of  November  ? 

A.  He  had  both  hands  pointing  in  this 
way  out  to  sea  (showing  the  court). 

Q.   Was  anybody  by  him  ? 

A.  Nobody  any  closer  than  I  was  ;  I 
pushed  by  him  at  the  foot  of  the  gun. 

Q.  How  long  was  this  before  his  arrest  ? 

A.  A  quarter  of  an  hour ;  I  was  going 
to  my  station  with  my  hammock  ;  it  might 
have  been  more  than  ten  minutes. 

Q.  When  you  first  went  by,  was  he 
pointing  this  way  to  sea  ? 

A.  Before  I  went  by — as  I  was  coming 
forward. 

Q.  Was  he  pointing  that  way  as  you 
came  back  ? 

A.  I  did  not  take  notice,  I  don't  remem- 
ber seeing  him. 

Q.  Did  you  not  think  his  actions  very 
singular  ? 

A.  I  did  at  the  time,  and  remarked  it  to 
another  boy  standing  by. 

Q.  Who  was  that  boy  ? 


128 


PROCEEDINGS  OF  THE 


A.  I  don't  recollect ;  there  were  a  dozen 
boys  standing  round. 

Q.  Did  you  whisper  to  the  boy  ? 

A.  No,  sir,  I  spoke  out  the  same  as  now  ; 
the  boy  and  myself  were  in  the  middle  of 
the  starboard  gangway  ;  Mr.  Spencer  could 
not  have  heard  me ;  I  should  not  have 
spoken  so  he  could  hear  me.. 

Q.  Did  the  boy  look  at  Mr.  Spencer 
when  you  spoke  ? 

A.  He  said  he  had  been  looking  at  him. 

Q.  What  did  the  other  boys  say  ? 

A.  I  did  not  hear  them  say  anything. 

Q.  Can't  you  tell  me  who  any  of  these 
boys  were? 

^4.  I  can't  remember,  the  whole  crew 
were  passing  backward  and  forward. 

Q.  Was  the  boy  you  talked  to  still  by 
when  you  came  back? 

A.  This  was  as  I  was  going  aft  to  my 
quarters  with  my  hammock  ;  I  did  not  see 
the  boy  again  till  after  Mr.  Spencer's  arrest ; 
he  (Mr.  Spencer)  was  not  making  motions 
then. 

Q.  What  was  it  you  said  to  the  boy  ? 

A.  I  asked  him  what  was  the  matter 
with  Mr.  Spencer. 

Q.  What  did  the  boy  say  ? 

A.  He  said  he  did  not  know,  but  he  sup- 
posed he  was  angry  because  he  was  called 
down  out  of  the  foretop  when  Green  was 
pricking  India  ink  into  his  arm. 

Q.  When  had  Mr.  Spencer  been  called 
from  the  foretop  ? 

A.  Not  Mr.  Spencer  ;  Green  had  been 
called  down  to  sling  his  hammock ;  they 
both  came  down,  it  was  that  afternoon. 

Q.  How  long  before  you  saw  him  motion- 
ing? 

A.  Ten  or  fifteen  minutes  before  quarters. 

Q.  How  had  Mr.  Spencer  his  arms  when 
he  said  the  die  will  soon  be  cast? 

A.  Had  his  arms  folded,  leaning  his 
breast  against  the  jacobus-ladder. 

Q.  When  did  you  first  mention  this  ex- 
clamation ? 

A.  I  won't  say  for  certain  whether  I  men- 
tioned it  to  Mr.  Gansevoort  or  not,  if  I  did, 
it  was  not  until  we  got  into  port :  I  think  I 
did  not ;  if  I  did  not,  I  mentioned  it  first  to 
the  court  of  inquiry. 

Q.  Had  you  forgotten  it  before  that  ? 

A.  No,  sir;  had  anybody  spoken  to  me 
of  the  conversation  I  should  have  remem- 
bered it. 

Q.  When,  in  less  than  half  an  hour,  you 


saw  Mr.  Spencer  arrested,  did  it  not  occur 
to  you  to  speak  of  this  exclamation  ? 

A.  No,  sir. 

Q.  Have  you  never  been  to  the  theatre 
or  circus  ? 

A.  Yes,  sir. 

BY    CAPTAIN    OGDEN. 

Q.  When  you  heard  Mr.  Spencer  say, 
"  The  die  will  soon  be  cast,"  was  his  man- 
ner calm  or  agi rated  ? 

A.  He  appeared  to  be  agitated. 

The  examination  of  W.  V.  Conger  was 
here  closed  ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

Midshipman  Rogers  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER    MACKENZIE. 

Q.  What  is  your  name  and  rank  ?  were 
you  on  board  of  the  Somers  in  her  last 
cruise  ? 

A..  My  name  Henry  Rogers,  my  rank 
a  midshipman,  on  board  the  Somers  in  her 
last  cruise. 

Q.  Did  Mr.  Spencer  ever  tell  your  for- 
tune, if  so  state  all  that  occurred? 

A.  Yes,  sir  j  he  examined  the  palm  of 
my  hand,  told  me  I  should  die  a  violent  and. 
sudden  death,  that  my  life  would  be  a  short 
one ;.  nothing  more  that  I  recollect. 

Q.  Did  he  say  anything  about  your  dying 
a  gambler  ? 

A.  I  forgot  to  mention  that,  it  was  that  I 
should  die  a  gambler. 

Q.  Did  he  subsequently  ask  you  to  bet 
with  him  ? 

A.  Yes,  sir,  he  bet  the  vessel  would  ar- 
rive at  St.  Thomas  in  eight  days. 

Q.  Did  you  then  express  any  opinion  as 
to  the  time  of  the  Somers'  arrival  at  St. 
Thomas  ? 

A.  Yes,  sir;  I  bet  she  would  not  arrive 
in  eight  days ;  I  also  said  that  in  such  ca- 
ses, I  bet  against  time,  and  the  probability 
of  having  light  breezes,  on  our  approach  to 
land. 

Q.  Did  Mr.  Spencer  ever  ask  you,  what 
was  the  character  or  rate  of  the  chronome- 
ter ?  If  so,  state  his  manner,  and  all  that 
occurred. 

A.  He  came  into  the  steerage,  where  I 
was  sitting,  and  asked  me  if  our  chronome- 
ter was  a  good  one  ;  I  replied,  I  did  not 
know,  but  supposed  it  was  a  very  good  one  ; 


NAVAL  COURT  MARTIAL. 


129 


he  then  asked  me,  if  I  knew  the  rate  of  it ; 
I  replied  that  I  did  not;  he  dropped  the 
conversation — this  was  the  day  of,  or  the 
day  previous  to,  his  arrest. 

Q.  On  what  night,  immediately  succeed- 
ing the  arrest  of  Mr.  Spencer,  were  you  to 
have  had  the  mid-watch  ? 

A.  I  would  have  had  it  on  the  28th  Nov. ; 
he  was  arrested  on  the  26th. 

Q.  What  was  the  character  of  Mr.  Spen- 
cer's mind  ? 

A.  Mature,  in  my  opinion;  he  was  intel- 
ligent and  better-informed  than  most  young 
men  who  had  entered  the  service  as  lately 
as  he  had. 

Q.  How  often,  and  on  what  occasion, 
had  you  known  the  commander  to  reprove 
Mr.  Spencer,  for  neglect  of  duty  ? 

A.  Mr.  Spencer  was  in  my  watch  the 
whole  cruise ;  I  don't  recollect  more  than 
one  occasion — that  was  because  the  look- 
outs were  asleep  on  the  forecastle  ;  he  also 
reproved  me  at  the  same  time — this  was 
between  Monrovia  and  St.  Thomas. 


Q.  Did  the  commander  reprove  Mr.  Spen- 
cer oftener  than  other  young  officers — what 
is  your  recollection  with  regard  to  this  mat- 
ter? 

A.  Not  so  often  as  Mr.  Delonde  and  Mr. 
Perry,  as  well  as  I  can  recollect. 

Q.  Was  Mr.  Spencer  attentive  to  his 
duty? 

A.  No,  sir ;  very  much  to  the  contrary. 

Q.  Did  Mr.  Spencer  speak  respectfully, 
or  otherwise,  to  the  commander  ? 

A.  In  the  habit  of  speaking  very  disre- 
spectfully of  him,  when  out  of  his  presence 
in  the  steerage  ;  his  manner  was  obsequious 
when  speaking  to  him. 

Q.  Did  you  assist  in  examining  Mr. 
Spencer's  locker,  for  the  plan  of  his  mutiny  ? 

A.  Yes,  sir;  by  the  order  of  the  com- 
mander. 

Q.  Are  these  the  papers  found  in  Mr. 
Spencer's  locker,  in  the  razor  case  ?  De- 
cipher them,  and  transcribe  them  in  Eng- 
lish ? 

A.  Yes,  sir ;  these  are  the  ones.* 


*  APPENDIX. 


The  following  is  an  exact  copy  of  the 
original  papers  found  in  Mr.  Spencer's 
razor  case  :  — 


it. 

E.  Avdgsvg. 


Udlgor.      X 
X 


Ucev 
SvMuvav. 


X 
X 

To  /?«  teUT  vofavq  volwg. 


Ucxv  Bgvn. 
17 


The  following  is  an  exact  translation  into 
English  of  the  Greek  paper : — 

Certain. 
P.  Spencer. 
E.  Andrews. 
D.  M'Kinley. 
Wales.  ' 


Doubtful 
Wilson.  X 
M'Kee.  X 
Warner. 
Green. 
Gedney. 
Van  Velsor. 
Sullivan. 
Godfrey. 
Gallia.  X 
Howard.  X 

To  be  kept,  willing  or  unwilling. 

Sibley. 
Stremel. 
Skott. 
Van  Brunt. 
Smith. 


130 


PROCEEDINGS  OF  THE 


Q.  From  your  observation  of  the  crew, 
what  portion  of  them  were  disaffected,  sub- 
sequent to  the  arrest  of  Mr.  Spencer,  Crom- 
welJ,  and  Small  ? 

A.  I  think  about  two  thirds  or  three 
fourths  of  the  crew,  including  all  the  elder 
portion,  but  the  petty  officers. 

Q.  According  to  your  observation  of  the 
crew  of  the  Somers,  subsequent  to  the  dis- 
covery of  the  mutiny,  and  the  arrest  of  Mr. 
Spencer,  Cromwell,  and  Small,  what  effect 
did  such  discovery  and  arrest  produce  on 
the  disaffected  persons  ? 

A.  I  believe  it  excited  the  fears  of  those 
Avho  were  implicated  with  Mr.  Spencer,  as 


to  a  discovery,  and  made  them  more  des- 
perate. 

Q.  Subsequent  to  the  arrest,  and  previous 
to  the  interment,  was  there  a  severe  squall 
in  your  watch  ? 

A.  Yes,  sir. 

Q.  Was  not  the  vessel  thrown  into  some 
confusion  ?  Did  not  the  commander  say  to 
you  that  the  weather  must  be  looked  out 
for,  and  the  safety  of  the  vessel  provided 
for,  whatever  might  be  going  on  1 

A.  Yes,  sir,  I  think  those  were  his  words  ; 
there  was  confusion  in  consequence  of  the 
squall  rising  and  approaching  the  vessel, 
before  we  commenced  taking  in  sail. 


pod/car. 

X^agy.. 
yvwteg. 


XOQVf.V. 


UcdTccp. 


-frogs  dovcpvh,  [ictgxtd  X    viJik   ngofiafikv  /?« 
wdvxsd  TO  Pow,  fitcpoge  &s  ngoywx  ig  xotggtsd 

IVTO  SXSXVTIOV. 

-frs  gtfiaivdeg  ocp  -frs  dovlcpvl,  vdl 
/SAv  Fow   vf.v  -frs  •frwy  ig  dove ;    iw  VOT, 


flV$T  / 

up  aw  vor  fiagy.tS  dow  vie;'  10   row 
IT  ig   dors,  ve  vdh  JIM   OVT  -&e  fovx  ctvd  di$- 
noge  ocp 


Whitmore. 

Gagely. 

Blackwell. 

Rodman. 

Clarke. 

Kneules. 

Keiley. 

Selsor. 

Corney. 

Dickenson. 

The  Doctor. 

Garrebrants. 

Waltham. 

Those  doubtful  marked  X  will  probably 
be  induced  to  pin  before  the  project  is  car- 
ried into  execution. 

The  remainder  of  the  doubtful  will  prob- 
ably join  when  the  thing  is  done,  if  not  they 
must  be  forced. 

If  any  one,  not  marked  down,  wish  to 
join  after  it  is  done,  we  will  pick  out  the 
best,  and  dispose  of  the  re&t. 


lied 


SECOND       PAPER. 

/  \  x?  j  ^  J  -*- 

MX^E' 


UiMgov. 


Wheel, 

M'Kee. 

Arm-chest, 

M'Kiiiley. 

( 

Spencer. 

Cabin,     < 

Small. 

( 

Wilson. 

Ward-room, 

Spencer. 

( 

Spencer. 

Steerage,    < 

Small. 

Wilson. 

NAVAL  COURT  MARTIAL. 


131 


Q.  What  was  the  condition  of  the  officers  | 
of  the   Somers,   as   to   exhaustion,  on  the 
evening  of  the  execution  ? 

A.  In  a  very  low  state  ;  I,  for  one,  felt 
I  could  not  stand  it  more  than  a  day  or  two, 
at  farthest ;  and  I  am  constitutionally  one 
of  the  strongest  of  the  junior  officers. 

Q.  Are  you  not  uncommonly  strong  and 
hardy,  compared  with  persons  generally  in 
and  out  of  the  navy  1 

A.  Yes,  sir  ;  I  think  I  am. 
Q.  Had  not  the  execution  taken  place,  in 
what  condition  would  the  officers  and  petty 
officers  have  been,  to  resist  an  attack  of  the 
crew,  while  shortening  sail  to  that  squall  ? 

A.  We  would  have  been  in  no  condition, 
in  my  opinion,  to  resist  such  an  attack. 

Q.  Do  you  believe  that  the  Somers  could 
have  reached  St.  Thomas,  had  not  the  execu- 
tion taken  place,  in  the  hands  of  the  officers  ? 
A.  No,  sir. 

Q.  Has  that  opinion  been  strengthened, 
or  diminished,  since  the  period  of  the  exe- 
cution ? 

A.  Strengthened  greatly. 
Q.  Had  the  Somers  bore  up  for  some 
near  island — Martinique,  for  instance — to 
seek  protection  instead  of  continuing  to  fol- 
low her  given  course,  what  effect,  in  your 
opinion,  would  such  change  of  course  have 
produced  in  the  confidence  of  the  officers? 

A.  I  don't  know  what  effect  it  would 
have  had  on  the  confidence  of  the  officers  ; 
I,  for  one,  would  have  disapproved  of  such 
a  course. 

Q.  Would  the  officers  have  felt  more  or 
less  confident  in  their  ability,  to  retain  com- 
mand of  the  vessel  ? 

A.  I  don't  know  that  it  would  have  made 
any  change,  except  that  it  would  have  been 
a  tacit  confession  of  their  own  weakness, 
and  of  the  strength  of  the  conspirators. 

Q.  What  effect,  in  your  opinion,  would 
such  a  change  of  course  have  had  on  the 
spirit  and  hardihood  of  the  disaffected  ? 

A.  I  think  it  would  have  elated  them 
very  highly,  and  I  think  the  moment  land 
was  made,  with  these  prisoners  on  board,  it 
would  have  been  a  signal  to  take  the  ves- 
sel. 

Q.  Had  a  squall  occurred,  or  a  gale,  on 
an  unusually  dark  night,  in  the  interim,  is  it 
your  belief  that  the  mutineers  would  have 
waited  for  land  to  be  made,  in  order  to  rise 
upon  the  officers  ? 
A.  No,  sir. 


CROSS-EXAMINED  BY  THE   JUDGE  ADVOCATE. 

Q.  Why  would  you  have  disapproved  of 
going  to  Martinique  ? 

A.  Because  I  should  have  thought  it  a 
disgrace  to  the  flag,  to  attempt  to  seek  pro- 
tection from  any  foreign  power  and  to  give 
up  the  prisoners,  and  because  it  would,  in 
my  opinion,  have  been  dangerous  also. 

Q.  Would  you  think  it  a  disgrace  for  an 
officer  to  leave  prisoners  in  a  foreign  jail, 
rather  than  assume  the  highest  judicial 
powers  against  law. 

A.  I  am  no  lawyer,  and  before  I  would 
seek  protection,  in  a  vessel  bearing  our  guns 
and  flag,  from  any  foreign  power,  I  would 
take  those  measures,  and  hang  the  three 
men  under  such  circumstances. 

The  testimony  of  Midshipman  Henry 
Rogers  was  here  suspended  ;  his  evidence 
was  read  to  him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Friday),  March  3,  at  10  o'clock,  A.  M. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March  3,  1843.  > 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present  — 

Captain  Downes,     Captain  McKeever, 
Read, 
Bolton, 
Turner, 
Sloat, 
Storer, 


Page, 

"       Gwinn, 
"       Wyman, 
Com'dr  Ogden, 
"       Shubrick, 

Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Midshipman  Rogers  recalled. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Do  you  suppose  that  if  Commander 
Mackenzie  had  told  his  crew  —  "  I  seek  a 
near  island  to  get  rid  of  mutineers,  whom  I 
have  no  right  to  punish  ;  they  and  their  sus- 
pected accomplices  have  not  gone  far  enough 
to  justify  that,  otherwise  I  would  hang  them 
without  changing  my  course,"  —  do  you  sup- 
pose the  crew  would  have  been  more  des- 
perate then,  or  that  the  confidence  of  the 
officers  would  have  been  impaired  ? 

A.  I  believe  that  it  would;  the  crew- 
would  have  been  more  desperate. 

The  counsel  for  the  defence  object   to 


J32 


PROCEEDINGS  OF  THE 


the  question,  as  perfectly  irrelevant — as  at- 
tributing to  Commander  Mackenzie,  ideas 
and  language  which  he  never  entertained  or 
held,  and  never  would  have  entertained  or 
held — as  asking  the  opinion  of  the  witness 
on  a  perfectly  hypothetical  and  painful  state 
of  facts,  and  as  entirely  overstepping  the 
limits  of  a  most  liberal  cross-examination. 

Q.  What  has  strengthened  your  opinion, 
since  you  have  got  in,  that  the  brig  could 
not  have  been  carried  into  St.  Thomas,  in 
the  hands  of  the  officers  ? 

A.  The  testimony  which  has  since  come 
out. 

Q.  You  say  you  supposed  two  thirds  or  j 
three  fourths  of  the  crew   disaffected ;   do  | 
you  mean  that  they  were  accomplices  of  I 
Mr.  Spencer,  or  were  willing  to  join  in  his 
rescue  ? 

A.  I  mean  they  were  willing  to  join  in 
his  rescue,  and  knew  of  the  plan. 

Q.  Have  not  all  the  officers  of  the  Som- 
ers,  at  the  time  of  the  arrest,  remained  in 
charge  of  the  crew,  except  Captain  Mac- 
kenzie, to  this  hour  ? 

A.  Yes,  sir,  with  the  exception  of  Mr. 
Perry. 

Q.  Of  all  that  crew,  large  and  small,  have 
you  known  one  on  oath,  or  otherwise,  to 
admit  to  this  hour  that  he  knew  of  Mr. 
Spencer's  plan  ? 

A.  No,  sir. 

Q.  Have  not  many  of  the  large  ones, 
whom  you  suspected,  been  sworn  before  the 
court  of  inquiry,  or  before  this  court  ? 

A.  Yes,  sir. 

Q.  If  those  you  suspected,  of  this  large 
number,  were  to  swear  each  that  he  had 
known  nothing  of  the  mutiny,  would  you 
believe  them  ? 

A.  No,  sir. 

Q.  Would  this  disbelief  arise  from  the 
general  character  of  the  witnesses  for  truth 
and  veracity? 

A.  No,  sir. 

Q.  Was  it  discussed  at  the  counsel  of 
officers  as  to  taking  the  brig  to  St.  Thomas 
or  any  nearer  port  ? 

A.  Yes,  sir. 

Q.  What  were  the  sentiments  of  Lieuten- 
ant Gansevoort  on  that  point  1 

A.  As  well  as  I  recollect,  that  the  vessel 
could  not  be  taken  to  St.  Thomas,  and  that 
the  safety  of  the  vessel  urgently  required 
the  execution  of  the  three  prisoners. 

Q.  Did  Lieutenant  Gansevoort  state  to  you 


or  the  officers,  that  it  was  the  commander's 
opinion  that  it  would  dishonor  the  flag  to 
seek  protection  in  a  foreign  port  ? 

A.  No,  sir;  not  to  my  recollection. 

Q.  Did  the  commander  state  anything  of 
that  kind  personally  to  the  officers,  if  so, 
what  was  it  ? 

A.  Nothing  of  the  kind  that  I  know  of. 

Q.  When,  and  where,  did  Mr.  Spencer 
tell  your  fortune  ?  was  anybody  by  ? 

A.  In  the  steerage,  two  or  three  weeks 
before  his  arrest ;  Mr.  Delonde,  and  Mr. 
Thompson,  and  Mr.  Tillotson,  I  think. 

Q.  Did  he  tell  their  fortunes  ? 

A.  Mr.  Delonde,  and  Mr.  Thompson,  I 
think. 

Q.  Do  you  remember,  generally,  what 
these  were? 

A.  No,  sir  ;  except  that  they  were  not 
similar  to  mine. 

Q.  Did  they  menace  them  with  any  sud- 
den death  or  danger  ? 

A.  Not  that  I  know  of. 

BX    CAPTAIN     S.HUBRICK. 

Q.  Did  he  predict  the  death  of  any  one 
but  yourself  ? 

A.  He  may  have  predicted  their  death  in 
the  natural  course  of  events ;  I  have  stated 
already  I  did  riot  recollect. 

BY  THE  JUDGE  ADVOCATE. 

Q.  How  came  this  fortune-telling  to  be- 
gin ? 

A.  From  some  remark  of  Mr.  Spencer's 
that  he  was  versed  in  the  art  of  fortune- 
telling. 

Q.  Was  not  the  whole  affair  a  steerage 
amusement,  according  to  your  conception  at 
the  time  ? 

A.  Yes,  sir. 

Q.  Was  there  much  jesting  at  the  pre- 
diction ? 

A.  No,  sir ;  I  think  not. 

Q.  Did  you  ever  see  Mr.  Spencer  draw 
a  brig  with  a  flag  ? 

.A.  I  have  seen  him  drawing  on  several 
occasions,  but  I  don't  recollect  any  particu- 
lar brig. 

Q.  Do  you  remember  one  evening  when 
Midshipman  Hays,  or  you,  first  drew  one 
and  then  Mr.  Spencer  another  ? 

A.  No,  sir. 

Q.  Were  you  in  the  habit  of  betting,  or 
proposing  bets  ? 

A.  No,  sir. 


NAVAL  COURT  MARTIAL. 


133 


Q.  When  was  it  you  and  Mr.  Spencer 
bet  as  to  the  arrival  of  the  brig  at  St. 
Thomas  ? 

A.  Two  days  previous  to  his  arrest,  as 
well  as  I  remember  ? 

Q.   What  was  the  wager  ? 

A.  A  bottle  of  brandy. 

Q.  Did  you  talk  about  the  bet  afterward  ? 

A.  He  said,  I  think  the  same  day,  that  I 
might  as  well  give  it  up. 

Q.  Did  he  seem  to  take  much  interest  in 
the  bet? 

A.  Yes,  sir ;  he  appeared  to  be  earnest, 
his  manner  at  the  time  struck  me  as  if  he 
wished  to  draw  my  opinion  as  to  the  time 
of  our  arrival.  I  looked  upon  the  bet  as  a 
joke,  so  far  as  giving  or  receiving  the  wager 
was  concerned. 

Q.  Is  not  the  chronometer  to  find  your 
distance  from  places  ? 

A.  An  instrument  to  find  the  longitude  of 
a  place. 

Q.  If  you  knew  the  rate  and  error  of  the 
chronometer,  and  knew  the  latitude,  could 
you  not  have  calculated  the  distance  to  St. 
Thomas  ? 

A.  Yes,  sir. 

Q.  Is  not  the  chronometer  called  a  good 
one  according  as  it  keeps  its  rate  ? 

A.  Yes,  sir. 

Q.  In  how  many  days  after  the  bet,  even 
under  the  circumstances  of  the  case,  did 
you  reach  St.  Thomas. 

A.  I  am  not  certain  as  to  the  day  we 
made  the  bet,  if  the  day  before  the  arrest  it 


was  in 
day. 


ten  days,  and  more  if  before  that 


Q.  Have  you  ever  known  Mr.  Perry,  the 
master,  to  give  cigars  to  any  of  the  boys  or 
allow  any  of  them  to  go  to  his  locker  and 
take  them  ? 

A.  No,  sir ;  he  may  have  sent  the  ward- 
room boy  to  get  cigars  for  him,  but  I  am 
not  certain  that  he  ever  did  so  in  my  pres- 
ence. 

Q.  Have  you  ever  known  Mr.  Ganse- 
voort  to  give  brandy  to  any  of  the  men  ? 

A.  Yes,  sir ;  I  have  known  him  to  give 
brandy  to  Browning  when  he  had  been 
overboard,  to  hook  the  standing  part  of  the 
foresheet ;  also,  to  Stewart,  the  captain  of 
the  forecastle,  when  he  had  been  under  the 
bows,  shackling  the  chain,  during  the  cold 
weather  on  the  coast.  I  only  saw  the  men 
go  down  in  the  wardroom  wet  and  cold,  and 
he  gave  them  a  drink. 


Q.  Have  you  ever  known  him  to  give 
any  to  Cromwell  and  Collins  ? 

A.  No,  sir,  I  don't  recollect.  > 

Q.  Have  you  ever  given  brandy  to  any  of 
the  boys  or  men  ? 

A.  No,  sir. 

Q.  Have  you  known  Mr.  Gansevoort 
frequently  to  send  brandy  or  wine  from  the 
wardroom  to  the  gentlemen  in  the  steerage  1 

A.  I  have  known  him  to  do  so  on  several 
occasions. 

Q.  Did  you  notice  Mr.  Spencer  before 
his  arrest  on  that  day,  if  so,  what  was  he 
about  ? 

A.  He  was  in  the  steerage  part  of  the 
time  ;  I  don't  recollect  having  seen  him  any 
other  time.  : 

Q.  Were  others  with  him  in  the  steerage? 

A.  The  other  steerage  officers  were 
there,  excepting  those  who  had  the  watch 
on  deck. 

Q.  Did  you  see  him  just  before  evening 
quarters  of  that  day,  or  at  quarters  ? 

A.  I  don't  recollect ;  I  saw  him  at  quar- 
ters. > 

Q.  Describe  what  took  place  then. 

A.  The  officers  were  all  called  on  the 
quarter-deck  by  the  first  lieutenant,  except 
Mr.  Hays,  the  commander  stepped  up  to 
Mr.  Spencer  and  said,  "  I  understand,  sir, 
you  aspire  to  the  command  of  this  vessel." 
Mr.  Spencer  replied,  "No,  sir."  I  did  not 
hear  the  conversation  that  ensued  imme- 
diately. I  heard  the  commander  say,  "  You 
admit  you  have  held  such  conversations"  or 
conversation,  I  don't  recollect  which.  Mr. 
Spencer  replied,  "  Yes,  sir — but  in  joke." 
The  commander  repeated,  "  You  admit  it." 
He  said  again,  "  I  was  in  joke."  The  com- 
mander told  him  it  was  a  serious  subject  to 
joke  upon,  and  might  one  day  cost  him  his 
life.  I  think  the  commander  said,  "  Step 
aft  there,  sir,"  and  then  told  the  first  lieuten- 
ant to  confine  him  in  irons ;  the  first  lieuten- 
ant took  his  sword,  irons  were  sent  for  and 
he  was  ironed.  After  he  was  in  irons,  the 
retreat  was  beaten,  and  the  crew  left  their 
quarters,  the  prisoner  was  delivered  into  my 
charge.  I  was  the  officer  of  the  deck. 

Shortly  afterward  the  first  lieutenant 
came  up  to  him  (Mr.  Spencer)  and  told  him 
he  understood  he  had  a  paper  concealed  in 
his  neck-handkerchief;  he  replied  he  had 
none  concealed  there,  and  taking  it  off  hand- 
ed it  to  the  first  lieutenant;  he  examined  it 
and  returned  it  to  him,  found  no  paper  there; 


134 


PROCEEDINGS  OF  THE 


about  this  time  the  commander  said  to  Mr. 
Spencer,  "  I  understand  you  have  been 
carrying  a  paper  in  your  neck-handker- 
chief," and  "  what  are  the  contents  of  it  ?" 
He  replied,  it  was  an  "  old  day's  work." 
The  commander  observed,  "  That  is  a  singu- 
lar place  to  carry  a  day's  work  ;  why  should 
you  carry  it  there?"  He  appeared  embarrass- 
ed and  replied  he  "  did  not  know  except  for 
convenience  ?"  The  first  lieutenant  also  ask- 
ed him  if  he  had  any  secret  papers  conceal- 
ed about  him,  he  told  him  he  had  not,  that 
he  might  search  him ;  he  searched  him  and 
ordered  me  to  assist  in  examining  some 
papers  which  he  found  in  his  pocket. 

Q.  Did  you  see  Wales  or  Small  called 
aft,  and  when  ? 

A.  I  think  before  the  irons  had  come  up, 
after  they  had  been  sent  for,  Mr.  Wales 
went  for  them  and  was  called  on  deck. 

Q.  Did  you  hear  the  conversation  be- 
tween Wales,  Small,  and  the  commander  ? 

A.  No,  sir. 

Q.  Was  the  retreat  beaten  till  Mr.  Spen- 
cer was  in  irons  ? 

A.  The  hand  irons  were  put  on  him  be- 
fore the  retreat  was  beaten  ;  the  irons  may 
have  been  on  him  before  Wales  and  Small 
were  called  up,  I  am  not  certain. 

Q.  Was  Small  on  deck  at  the  time  of 
Mr.  Spencer's  being  disarmed  or  was  he 
sent  for  from  the  birth-deck  ? 

A.  Sent  for  from  the  birth-deck  ;  I  call- 
ed him  up  by  the  order  of  the  first  lieutenant 
or  commander. 

Q.  Were  they  at  quarters  when  you  call- 
ed Small? 

A.  Yes,  sir,  I  think  they  were. 

Q.  Did  you  see  any  one  come  up  from 
below  and  tell  the  captain  that  Wales  said 
Spencer  had  a  paper  in  this  neck-handker- 
chief? 

A.  No,  sir. 

Q.  When  did  you  search  the  locker  ? 

A.  After  my  watch  was  out,  a  few 
minutes  after  six  o'clock.  The  first  lieu- 
tenant came  down  into  the  steerage  and 
told  me  he  had  been  ordered,  with  myself, 
by  the  commander,  to  search  Mr.  Spencer's 
locker ;  we  proceeded  to  search  it ;  took 
nearly  everything  out  of  his  locker, 
opened  the  drawer  of  a  small  looking-glass, 
found  a  razor-case  in  it ;  I  don't  recollect  if 
there  was  anything  else  in  it;  the  razor- 
case  felt  light,  upon  opening,  we  found 
these  papers,  the  first  lieutenant  took  them  ; 


on  opening  them  we  found  names  in  Greek 
characters  ;  shortly  after,  either  the  same 
evening  or  the  succeeding  morning,  he 
called  me  into  the  wardroom  and  told  me  to 
translate  them  into  English,  which  I  did ; 
Mr.  Hays,  Mr.  Delonde,  and  Mr.  Oliver 
Perry,  were  present  when  we  found  them, 
and  when  I  transcribed  them. 

Q.  Did  you  find  any  other  papers  then  ? 

A.  I  found  other  scraps  of  paper,  of  no 
account,  and  some  letters,  all  of  which 
were  left. 

Q.  Were  those  letters  then  examined  ? 

A.  No,  sir. 

Q.  Did  you  read  off  the  names  when 
you  first  found  the  papers  in  the  razor- 
case  ? 

A.  I  read  two  or  three  ;  I  don't  recollect 
which  they  were. 

Q.  Do  you  remember  when  transcribing 
the  names  and  reading  them  off,  to  have 
heard  Mr.  0.  H.  Perry  say  "  Those  are  his 
chickens  ?" 

A.  No,  sir. 

Q.  When  you  went  to  transcribing  the 
papers,  where  were  they  taken  from  ? 

A.  I  don't  know.  Mr.  Gansevoort  had 
them  in  his  possession,  laid  them  on  the 
table,  and  told  rne  the  commander  wished 
me  to  decipher  them. 

Q.  Which  paper  did  you  read  from  when 
you  first  found  them  ? 

A.  From  both  of  them,  I  had  a  glance  at 
both  of  them  and  read  out. 

Q.  Who  made  up  Mr.  Gansevoort's  bed? 

A.  Waltham,  or  Edward  Robbins ;  I 
don't  belong  to  the  wardroom ;  I  don't  know 
who  made  his  bed. 

Q.  Did  not  M'Kinley  sometimes  make 
up  Mr.  Gansevoort's  bed  ? 

A.  Not  that  I  know  of;  I  think  he  made 
up  the  doctor  and  purser's  cots. 

Q.  Did  you  notice  M'Kinley  in  the  ward- 
room making  up  beds  when  you  first  found 
the  papers  in  the  steerage  ? 

A.  I  noticed  him  coming  out  of  the  ward- 
room immediately  after  Mr.  Gansevoort  had 
taken  them,  and  I  had  read  them. 

Q.  What  were  the  first  two  names  on  the 
station-bill  ? 

A.  M'Kee  and  M'Kinley. 

Q.  Did  the  gentlemen  present  say,  during 
the  reading,  that  they  supposed  those  names 
stood  for  Mr.  Spencer's  accomplices  ? 

A.  They  may  have  said  so. 

Q.  Did  M'Kinley  do  services  for  the  gen- 


NAVAL  COURT  MARTIAL. 


135 


tlemen  in  the  ward-room,  such  as  wash- 
ing, &c. 

A.  I  believe  he  did. 

Q.  Was  he  not  thought  a  good  boy  until 
the  arrest  of  Mr.  Spencer  ? 

A.  Yes,  sir,  with  the  exception  of  two  or 
three  misdemeanors,  for  which  he  was  pun- 
ished ;  I  heard  the  first  lieutenant  say  he 
was  a  pretty  good  boy  ;  he  was  punished 
for  disobedience  of  orders  at  Santa  Cruz, 
and  for  swearing  at  and  abusing  one  of  the 
men — called  him  "  a  son  of  a  bitch." 

Q.  Did  you  hear  him  apply  to  Lieutenant 
Gansevoort  for  a  week's  absence,  when  they 
got  here,  to  go  to  Boston. 

A.  No,  sir. 

Q.  Did  you  see  the  chest  the  irons  were 
kept  in,  moved  into  the  ward-room  ? 

A.  No,  sir ;  I  saw  it  after  it  was  moved. 

Q.  Had  the  chest  been  removed  before 
you  searched  the  locker  ? 

A.  It  was  removed  while  we  were  at 
quarters  ;  the  locker  was  searched  after- 
ward. 

Q.  Did  you  see  Lieutenant  Gansevoort 
return  the  key  of  the  chest  to  Garty  ? 

A.  No,  sir. 

Q.  Had  you  any  talk  with  Wales  on  the 
evening  of  the  arrest  ? 

A.  I  think  I  had  ;  it  was  something  in 
regard  to  the  cause  of  Mr.  Spencer's  con- 
finement. 

Q.  Did  he  tell  you  of  his  conversation 
on  the  booms  then  ? 

A.  He  told  me  the  substance  of  it. 

Q.  Did  he  tell  you  about  the  throwing 
you  overboard,  murdering,  and  taking  the 
arms,  &c. 

A.  I  presume  he  did  ;  I  don't  recollect ; 
he  told  me  the  substance  of  what  occurred 
on  the  booms. 

Q.  Was  Wales  by  when  you  were  search- 
ing the  locker  ? 

A.  I  did  not  see  him. 

Q.  Did  you  see  others  ?  and,  if  so,  who 
were  talking  with  Wales  that  evening  about 
the  arrest  ? 

A.  I  think  he  told  the  other  steerage 
officers  at  the  same  time  that  he  told  me. 

Q.  When  did  you  first  hear  the  mutiny 
was  to  break  out — before  you  got  to  St. 
Thomas  ? 

A.  I  did  not  hear  when. 

Q.  Was  it,  at  any  time  before  the  ex- 
ecution, said  by  Wales  to  you,  that  Mr. 
Spencer  had  told  him  that  the  mutiny 


was  to  break  out  before  you  reached  St. 
Thomas  ? 

A.  I  think  it  was  stated  so  before  the 
council ;  the  testimony  will  show  whether 
it  was  or  not. 

Q.  If  no  such  thing  is  in  Wales's  testi- 
mony before  the  council  of  officers,  can  you 
recollect  otherwise  of  his  having  said  so  1 

A.  Not  to  me. 

Q.  Refresh  your  recollection  by  referring 
to  the  minutes  of  the  council  of  officers,  and 
say  whether  Wales  testified  to  anything  of 
that  kind  there  ? 

A.  No,  sir. 

Q.  Were  you  on  deck  when  Wales  said 
he  saw  Wilson  at  the  handspike  1 

A.  I  was  not  on  deck  ;  I  yesterday  stated 
I  should  have  had  the  mid-watch  on  the 
28th  ;  I  should  have  said  the  29th. 

Q.  What  transpired  at  the  swaying  of  the 
mast,  on  the  27th  ? 

A.  After  I  had  had  the  mast-rope  rove, 
finding  nobody  aft  to  man  it,  I  inquired  of 
one  of  the  boatswain's  mates,  Collins,  where 
all  the  crew  were ;  he  said  they  were  all 
forward — he  had  ordered  them  aft,  but  they 
would  not  obey,  and  that  it  would  be  neces- 
sary for  an  officer  to  go  forward  ;  I  drew  a 
pistol,  and  went  forward  and  ordered  Brown- 
ing, the  boatswain's  mate,  to  get  his  colt  and 
come  forward  also ;  I  got  upon  the  fore- 
castle, and  found  the  crew  partly  sitting 
and  partly  lying  down  ;  some  were  talking 
together  in  a  low  tone  ;  I  ordered  them  aft, 
and  told  Browning  to  start  them  with  his 
colt ;  he  struck  two  or  three,  and  they  all 
got  up  and  went  aft,  stamping  loudly  as  far 
as  the  mainmast ;  I  followed  them,  and  when 
about  half  way  aft,  I  heard  the  first  lieuten- 
ant cry  out,  "  What  noise  is  that  ?"  I  replied 
that  it  was  me,  and  that  I  was  sending  the 
men  aft ;  the  mast-rope  was  manned,  and 
before  it  was  swayed  aloft,  I  was  relieved. 

Q.  Did  you  hear  any  other  observation 
from  Mr.  Gansevoort  at  the  time  1 

A.  I  don't  know  whether  I  heard  him  at 
the  time,  or  afterward,  say  that  he  had  said, 
"  Don't  come  aft." 

Q.  Did  you  hear  Mr.  Gansevoort  threaten 
to  shoot  the  first  man  that  put  his  foot  on 
the  quarter-deck  ? 

A.  No,  sir  ;  if  I  did,  I  don't  recollect  it. 

Q.  Did  you  hear  him  afterward  express 
his  satisfaction  that  he  had  not  shot  ? 

A.  I  am  not  certain  as  to  that;  I  may 
have  heard  him  say  so. 


136 


PROCEEDINGS   OF  THE 


Q.  Mr.  Rogers,  did  Lieutenant  Ganse- 
voort  afterward  say  anything  to  you  about 
being  under  a  wrong  impression  as  to  'the 
motives  of  the  men  in  coming  noisily  aft  ? 

A.  He  has  since  said  to  me  that  he 
thought  they  had  an  object  in  rushing  aft 
and  stamping  as  they  did. 

Q.  When  has  he  said  this  ? 

A.  Lately. 

Q.  Did  you  hear  anything  of  this  before 
the  execution  ? 

A.  Yes,  sir  ;  I  heard  him  say  that,  from 
the  manner  of  the  crew,  he  thought  they  had 
rushed  aft  to  make  a  rescue. 

Q.  Did  Lieutenant  Gansevoort  say,  be- 
fore the  execution,  to  you,  that  he  was  under 
a  wrong  impression  as  to  what  the  crew 
came  aft  in  that  manner  for  ? 

A.  Not  that  I  recollect. 

Q.  What  did  you  tell  Mr.  Gansevoort 
when,  before  the  execution,  he  told  you  he 
thought  the  men  had  rushed  aft  to  make  a 
rescue  ? 

A.  I  think  I  told  him  that  it  had  that  ap- 
pearance, or  words  to  that  effect. 

Q.  Had  you  any  discussion  on  the  28th 
of  November,  as  to  putting  the  three  prison- 
ers to  death  ? 

A.  I  don't  recollect  what  date  Mr.  Gan- 
sevoort asked  me  my  opinion,  if  it  became 
necessary  to  make  more  prisoners,  if  we 
should  be  able  to  guard  them  ;  I  told  him, 
"  No." 

Q.  Did  you  then  give  it  as  your  opinion 
that  Cromwell,  Small,  and  Mr.  Spencer, 
should  be  put  to  death  ? 

A.  Yes,  sir. 

Q.  When  the  commander  flogged  Wal- 
tham,  did  he  tell  the  crew  how  he  intended 
to  dispose  of  the  prisoners  ? 

A.  I  don't  recollect. 

Q.  Did  you  hear  any  public  declaration 
as  to  taking  the  prisoners  to  the  United 
States,  from  the  commander  ? 

A.  I  don't  remember. 

Q.  From  the  arrest  to  the  execution,  do 
you  know  of  any  inquiries  of  Mr.  Spencer, 
Small,  or  Cromwell,  as  to  who  were  in  the 
mutiny,  and  when  those  papers  of  Mr. 
Spencer  were  made  out  ? 

A.  Of  my  own  knowledge,  no,  sir. 

Q.  Did  Mr.  Spencer  write  home,  or  did 
he  desire  any  one  to  write  for  him  ? 

A.  Not  to  my  knowledge. 

Q.  Did  you  ever  see  the  memorandum  of 
Ms  last  conversation  with  the  commander  ? 


A.  No,  sir. 

Q.  Were  the  executed  prisoners  taken 
out  of  irons  after  the  arrest  ? 

A.  No,  sir  ;  Mr.  Spencer  was  taken  out 
in  the  morning  to  wash  himself,  and  to 
make  his  toilet ;  not  the  others,  1  think. 

Q.  When  you  speak  of  making  his  toilet, 
do  you  mean  changing  clothes  for  clean 
ones  ? 

A.  Yes,  sir,  and  washing  himself. 

Q.  When  was  it  first  mentioned  that  a 
council  of  officers  was  to  be  held  ? 

A.  On  the  morning  of  the  30th,  I  be- 
lieve. 

Q.  Did  Mr.  Gansevoort  say  to  you  any- 
thing about  Mr.  Spencer's  proposing  to  hold 
a  conversation  with  him  when  in  a  suitable 
frame  of  mind  ? 

A.  I  heard  him  mention  it ;  I  don't  know 
whether  he  was  addressing  me  or  not ;  he 
said  that  Mr.  Spencer  had  said  to  him  that 
he  would  like  to  hold  a  conversation  with 
him,  when  he  was  in  a  suitable  state  of 
mind,  or  words  to  that  effect. 

Q.  Did  he  mention  anything  of  Mr.  Spen- 
cer's saying  he  would  answer  any  question 
Mr.  Gansevoort  would  put  to  him  ? 

A.  Yes,  ]  believe  he  did. 

Q.  Had  you  any  conversation  with  Mr. 
Spencer  or  any  of  the  prisoners,  of  any  de- 
scription, from  their  arrest  to  their  execu- 
tion ? 

A.  No,  sir ;  I  may  have  said  to  them, 
that  if  I  saw  any  signs  of  communicating 
with  the  crew,  my  orders  were  to  put  them 
to  death,  and  I  would  obey  them.  Any  re- 
quests for  books,  water,  &c.,  &c.,  passed 
through  me  when  officer  of  the  deck. 

Q.  Before  the  mast  was  swayed,  were 
not  orders  given  that  the  crew  should  keep 
forward  and  not  be  looking  aft  1 

A.  I  don't  recollect  it  at  that  time. 

Q.  Have  you  ever  heard  Lieut.  Ganse- 
voort describe  Cromwell  as  an  invaluable 
man,  or  speak  of  having  him  made  a  boat- 
swain ?  and  when  1 

A.  Yes,  sir ;  I  recollect  the  early  part 
of  the  cruise  hearing  him  say  that  he  was 
an  excellent  man  in  his  opinion,  but  nothing 
about  having  him  made  a  boatswain. 

Q.  Did  you  see  any  insubordination  in 
Cromwell  ? 

A.  Yes,  sir ;  his  general  manner  was  in- 
subordinate, insolent,  particularly  the  latter 
part  of  the  cruise. 

Q.  Can  you  refer  to  any  instance  ? 


NAVAL  COURT   MARTIAL. 


137 


A.  I  recollect  of  his  damning  the  vessel 
and  the  jib-stay  ? 

Q.  Was  not  this  when  the  jib  worked 
badly  ? 

A.  Yes,  sir  ;  the  jib-lacing  was  wet,  and 
it  worked  badly  at  that  time. 

Q.  When  was  the  work  of  the  jib  im- 
proved ? 

A.  In  dry  weather  ;  the  lacings  were 
rove  differently  afterward  ;  the  lacings  had 
shrunk. 

Q.  Is  not  lacing  an  unusual  rig  ? 

A.  I  don't  know  that  I  have  seen  it  be- 
fore for  a  jib. 

Q.  How  did  the  new  fashion  of  lacing 
answer  at  first  ? 

A.  Very  well,  as  far  as  I  know,  except 
on  this  occasion. 

BY    CAPTAIN    OGDEN. 

Q.  Did  you  consider  the  circumstance 
of  the  jib  working  badly  any  excuse  what- 
ever for  the  insubordinate  conduct  of  Crom- 
well which  you  have  spoken  of  ? 

A.  No,  sir. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Was  he  reported,  or  punished  ? 

A.  He  was  reprimanded  by  Mr.  Ganse- 
voort. 

Q.  Can  you  give  the  substance  of  what 
Mr.  Gansevoort  said  ? 

A.  No,  sir ;  I  only  heard  that  he  repri- 
manded him. 

BY    CAPTAIN    SLOAT. 

Q.  Do  you  recollect  the  exact  language 
that  Cromwell  used  on  that  occasion  ? 

A.  It  was  something  like  "  Damn  the  jib 
and  lacing,  'and  the  damn  fool  that  invent- 
ed it." 

BY  THE    JUDGE  ADVOCATE. 

Q.  Do  you  know  whether  Cromwell  apol- 
ogised for  his  remark  as  passionate  and 
thoughtless  ? 

A.  No,  sir;  I  do  not. 

BY   COMMANDER  MACKENZIE. 

Q.  Were  not  the  head-sails  of  the  Inde- 
pendence, Fairfield,  and  Dolphin,  fitted  with 
hide-lacings,  instead  of  hanks  ?  and  did  not 
they  work  well  ? 

A.  I  don't  recollect. 

Q.  When  the  commander  spoke  to  the 

crew,  after  flogging  Waltham,  on  the  28th, 

18 


did  you  judge  from  what  he  said,  that  any 
further  measures  would  be  necessary  to 
quell  the  mutiny,  or  secure  the  safety  of  the 
vessel ? 

A.  No,  sir. 

Q.  Did  not  the  conviction  of  the  necessi- 
ty of  further  measures  of  repression  grow 
out  of  the  increase  of  insubordination  on  the 
part  of  the  crew,  and  increasing  manifesta- 
tion of  a  disposition  to  make  an  outbreak  ? 

A.  Yes,  sir. 

Q.  According  to  your  observation  of  the 
crew  of  the  Somers,  what  effect  did  the  fact 
of  an  officer  being  at  the  head  of  a  conspir- 
acy to  capture  her  and  convert  her  into  a 
pirate  have  on  the  crew  of  that  vessel  ? 

A.  The  effect  of  destroying  altogether 
the  moral  influence,  the  only  influence  the 
officers  could  possess  over  the  crew. 

Q.  Do  you  believe  that  any  man-of-war 
can  be  safe  when  an  officer  conspires  to 
create  a  mutiny,  unless  an  accidental  dis- 
covery takes  place  ? 

A.  No,  sir  ;  I  do  not. 

Q.  What  effect  did  the  execution  produce 
in  restoring  the  discipline  and  subordination 
of  the  crew  ? 

A.  Of  restoring  it  immediately  and  re- 
lieving their  minds  ;  they  were  more  cheer- 
ful after  the  execution  than  they  had  been 
since  the  arrest. 

Q.  What  difference  did  you  perceive  in 
the  alacrity  with  which  orders  were  obeyed 
and  the  ship's  duty  performed,  before  and 
after  the  execution  ? 

A.  Before  the  execution,  an  order  had  ta 
be  given  frequently  several  times  before  it 
was  obeyed,  and  when  finally  obeyed,  it 
would  be  done  sullenly  and  with  muttering. 
After  the  execution  they  obeyed  with  alac- 
rity and  cheerfully,  and  without  a  single 
order  being  repeated. 

Q.  Did  you  observe  on  the  part  of  the 
crew,  guilty  or  innocent,  at  the  time  of  the 
execution,  or  after  it,  any  evidence  that  they 
considered  the  execution  unjust  and  unne- 
cessary ? 

A.  No,  sir;  I  saw  Waltham  standing 
forward  with  the  tail  end  of  the  whip  in  his 
hand,  looking  aft,  as  if  he  was  not  going  to 
haul. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Have  you  known  Commander  Mac- 
kenzie during  the  last  cruise  to  maltreat  the 


138 


PROCEEDINGS  OF  THE 


crew  of  the  Somers,  and  to  inflict  on  them 
cruel  and  unnecessary  punishment  ? 
A.  No,  sir;  none. 

BY    CAPTAIN   PAGE. 

Q.  Could  Mr.  Spencer  take  sights  for 
the  chronometer  and  work  out  the  longitude 
from  them  ? 

A.  If  the  data  were  given,  he  could. 

The  examination  of  Midshipman  Henry 
Rogers  was  here  closed ;  his  evidence  was 
read  to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Saturday),  March  4,  at  10  o'clock, 
A.  M. 


NAVY  YARD,        ) 
Brooklyn,  March  4,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

Bolton,  "        Gwinn, 

"       Turner,  "        Wyman, 

"       Sloat,          Com'dr  Ogden, 
"       Storer,  "        Shubrick, 

Members ; 

Win.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Henry  King  was  then  called,  and  being 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  age,  and  rank  ? 
Were  you  on  board  the  Somers  in  her  late 
cruise  ? 

A.  My  name  is  Henry  King,  my  age  34 
years  ;  I  was  on  board  of  the  Somers  in 
her  last  cruise  as  gunner's  mate. 

Q.  Before  the  departure  of  the  Somers 
from  New  York,  when  she  was  lying  along- 
side of  the  Savannah  refitting,  did  you 
see  liquor  smuggled  during  Mr.  Spencer's 
watch  ? 

A.  Yes,  sir ;  smuggled  by  Small,  and 
drank  by  Mr.  Spencer,  Cromwell,  and 
Small ;  it  was  aboard  of  the  Savannah ;  I 
saw  no  one  else. 

Q.  Did  you  notice  anything  disorderly 
in  the  conduct  of  the  crew  previously  to  the 
arrest  of  Mr.  Spencer  ? 


A.  Yes,  sir  ;  the  crew  were  not  as  atten- 
tive to  their  duty  after  we  left  Madeira  as 
from  New  York  to  Madeira ;  Cromwell  used 
to  be  very  cruel  to  the  boys  on  the  outward 
bound  passage  ;  after  that,  he  used  to  have 
collections  of  boys  round  him  in  his  watch, 
and  would  be  very  good  to  the  larger  boys. 

Q.  Shortly  before  the  arrest  of  Mr.  Spen- 
cer, did  the  crew  obey  orders  quickly,  or 
not? 

A.  No,  sir. 

Q.  On  the  night  of  Mr.  Spencer's  arrest, 
did  you  notice  Cromwell  calling  the  wrong 
watch  ? 

A.  Yes,  sir ;  at  12  o'clock. 

Q.  Subsequently  to  the  arrest  of  Mr. 
Spencer,  Cromwell,  and  Small,  what  was 
the  conduct  of  the  crew  ? 

A .  They  used  to  collect  in  lots  about  the 
deck,  talked  in  a  low  tone  so  you  could  not 
hear  them,  and  when  anybody  came  by 
them  would  separate  ;  some  of  the  biggest 
boys  could  not  be  got  off  the  deck  to  take 
in  sail. 

Q.  On  the  night  of  the  29th  November, 
did  you  notice  that  any  of  the  larger  boys 
missed  their  muster  ? 

A.  Yes,  sir,  four  or  five  ;  they  were  War- 
ner, Green,  Gedney ;  I  don't  recollect  the 
others. 

Q.  Did  you  notice  any  symptoms  of  a 
disposition  to  make  an  attack  on  the  offi- 
cers and  rescue  the  prisoners  ? 

A.  Yes,  sir,  I  saw  Wilson  stow  away  a 
knife  to  give  to  Mr.  Spencer,  as  I  believed  ; 
when  I  saw  him  stow  it  away  it  was  in  the 
rigging  of  No.  5  gun,  on  the  starboard  side, 
within  ten  feet  of  Mr.  Spencer ;  I  watched 
him  all  day  ;  he  kept  his  eyes  on  Mr.  Spen- 
cer and  the  officer  on  watch,  instead  of  on 
his  work  ;  I  reported  it  at  eight  o'clock  that 
night  to  Mr.  Gansevoort,  he  overhauled  his 
sailbag  and  found  it  there  ;  the  bag  was  in 
the  store-room  at  eight  o'clock. 

Q.  Did  you  notice  any  collection  of  hand- 
spikes and  heavers  ?  state  all  you  observed. 

A.  I  found  two  handspikes  and  three 
heavers  stowed  away  in  the  stern  of  the 
launch,  at  sundown  of  the  same  day  ;  I  had 
orders  to  stow  away  everything  that,  could 
be  used  as  a  weapon  before  ;  I  stowed  away 
these  things  between  the  cutters,  and  at  ten 
o'clock,  when  I  went  round  the  battery,  I 
found  them  in  the  stern  of  the  launch  again. 

Q.  In  the  event  of  an  attempt  to  arm  the 
faithful  of  the  crew  to  assist  the  officers  in 


NAVAL  COURT  MARTIAL. 


139 


the  defence  of  the  vessel,  what  portion  of 
the  apprentices  could  have  been  depended 
on  and  armed  to  stand  by  their  officers  and 
their  flag  ? 

A.  The  very  smallest  boys  on  board. 

Q.  Were  you,  with  other  petty  officers, 
armed  on  the  day  of  execution  ? 

A.  Yes,  sir. 

Q.  What  sort  of  duty  had  you  to  perform 
from  that  time  until  your  arrival  in  New 
York,  and  the  removal  of  the  prisoners  ? 

A.  I  had  to  stand  nearly  night  and  day 
in  our  watch,  and  when  below  we  could  not 
get  much  sleep,  from  the  noise  of  the  boys, 
and  we  did  not  know  what  minute  we  might 
have  a  knife  put  into  us. 

Q.  From  the  arrest  of  Mr.  Spencer  to 
the  execution,  did  you  consider  the  Somers 
safe? 

A.  No,  sir. 

Q.  Did  you  then,  or  do  you  now,  believe 
that  the  Somers  could  have  been  brought 
safe  into  any  port  if  the  execution  had  not 
taken  place  ? 

A.  No,  sir. 

CROSS-EXAMINED    BY    JUDGE     ADVOCATE. 

Q.  Did  you,  before  the  council  of  offi- 
cers, give  it  as  your  opinion  that  Mr.  Spen- 
cer, Cromwell,  and  Small,  should  be  put  to 
death  ? 

A.  I  gave  it  as  my  opinion  that  the  ves- 
sel was  not  safe  with  them  aboard. 

Q.  What  did  you  intend  should  be  under- 
stood by  that  ? 

A.  It  was  to  be  understood  that  I  did  not 
think  the  vessel  safe  ;  Mr.  Gansevoort  told 
me  to  talk  it  over  with  Dickinson  about  the 
execution  ;  and  before  I  gave  my  opinion, 
orders  were  given  for  making  preparations 
for  the  execution. 

Q.  Was  not  the  putting  to  death  of  these 
three  spoken  of  before  the  council  ? 

A.  It  was  spoken  of;  I  did  not  know  in 
what  way  it  was  to  be  done,  or  that  it  was 
to  be  done  ;  it  was  spoken  of. 

Q.  Were  you  not  asked  before  the  coun- 
cil whether  these  three  should  not  be  put  to 
death  or  disposed  of? 

A.  I  was  asked  were  it  not  best  for  them 
to  be  put  to  death — was  the  vessel  safe 
with  them  on  board. 

Q.  Why  did  you  answer  in  that  peculiar 
manner  to  that  plain  question  ?  had  you  no 
decided  opinion,  or  was  you  unwilling  to 
say  no  ? 


A.  I  was  not  unwilling  to  say  no ;  I 
knowed  the  vessel  was  in  danger  with  them 
aboard ;  it  was  safer  for  all  hands  if  they 
were  out  of  the  vessej. 

Q.  Was  it  that  it  was  safer  for  all  hands 
because  these  three  men  were  the  only  ones 
who  knew  how  to  navigate  a  vessel,  after  a 
mutiny  was  executed  ? 

A.  These  were  the  only  three  who  could 
navigate  a  vessel,  and  Cromwell  was  the 
only  sailor  of  the  three. 

Q.  Suppose  Wilson  had  known  naviga- 
tion, would    you  have    thought  it  safe  to 
leave  him  astern  also  ? 
A.  Yes,  sir. 

Q.  If  M'Kinley  and  Green  had  known, 
would  you  have  thought  the  same  as  to 
them? 

A.  No,  sir,  they  were  boys,  they  could 
be  looked  out  for. 

Q.  Were  you  present  when  M'Kinley, 
M'Kee,  and  Green,  were  arrested?  state 
what  occurred  ? 

A.  Yes,  sir,  we  were  at  quarters,  the 
commander  and  first  lieutenant  went  round 
the  divisions — they  were  picked  out  and 
sent  aft  and  ironed:.!  did  not  notice  the 
conversation. 

Q.  Did  you  hear  the  commander  tell 
hem  he  had  only  suspicions  against  them, 
and  hoped  he  still  might  be  able  not  to  take 
the  apprentices  home  in  irons  ? 

A.  1  think  it  was  Mr.  Gansevoort  I  heard 
say  these  words. 

Q.  When  about  to  iron  these,  did  Mr. 
Gansevoort  say,  "  King,  stand  by  with  a 
handspike,  and  if  you  see  a  false  motion  in 
these  fellows,  knock  out  their  brains  with 
the  handspike,"  or  words  to  that  effect? 

A.  He  said,  "  Stand  by,  and  if  you  see 
them  make  a  false  move,  knock  them  down 
with  the  first  thing  you  can  lay  your  hands 
on." 

Q.  Did  not  these  men  submit  from  the 
first,  and  merely  protest  their  innocence  of 
anything  improper  ? 

A.  I  heard  them  say  nothing,  but  they 
allowed  themselves  to  be  quietly  ironed. 

Q.  Who  kept  the  store-room  key  of 
nights,  and  at  what  hour  was  it  locked  ? 

A.  First  lieutenant  kept  the  key,  it  was 
locked  at  sundown. 

Q.  That  dirk  being  locked  up  there  on 
the  night  you  have  spoken  of,  how  could 
you  think  Wilson  had  any  evil  intention 
with  it  ? 


140 


PROCEEDINGS  OF  THE 


A.  I  could  easily  kick  the  store-room 
door  down,  or  get  through  the  hole. 

Q.  Could  he  not  have  kept  it  about  his 
person,  and  not  put  it  in  the  bag  ? 

A.  I  don't  think  he  could  without  being 
seen  ;  he  knew  better,  too,  for  everything 
suspicious  was  taken  notice  of. 

Q.  Did  you  speak  to  him  about  the  dirk 
in  the  gun-tackle  ? 

A.  No,  sir. 
Q.  How  many  were  near  when  he  put 
the  dirk  in  the  gun-tackle  ? 

A.  Two  or  three  boys  were  at  work  with 
him,  and  Mr.  Spencer  about  ten  feet  from 
him. 

Q.  What  time  of  day  was  it  ? 

A.  About  ten  o'clock  the  day  after  Crom- 
well and  Small  were  arrested. 

Q.  Who  were  the  boys  at  work  with 
him? 

A.  Strummels  was  one,  I  don't  recollect 
the  others. 

Q.  Was  Wilson  sitting  at  the  foot  of  the 
gun? 

A.  Between  Mr.  Spencer  and  the  gun, 
alongside  of  it — about  ten  feet  from  Mr. 
Spencer. 

Q.  Was  it  as  he  sat  that  he  placed  the 
knife  in  the  gun-tackle  ? 

A.  Yes,  sir. 

Q.  Do  you  know  when  he  took  the  knife 
from  the  tackle  ? 

A.  At  supper-lime  when  he  knocked  off 
work ;  he  placed  it  in  the  bag  again. 

Q.  Was  he  talking  to  the  boys  while  at 
•work? 

A.  He  would  talk  with  the  boys  now  and 
then,  but  his  eyes  were  on  Mr.  Spencer  and 
the  officer  on  watch. 

Q.  Had  you  not  suspected  Wilson  be- 
fore? 

A.  Yes,  sir. 

Q.  Do  you  know  why  he  was  placed  so 
near  Mr.  Spencer  ? 

A.  No,  sir,  it  was  his  own  choice. 

Q.  Have  you  not  said  that  he  knew  that 
everything  suspicious  was  noticed  ? 

A.  Yes,  sir. 

Q.  On  what  part  of  the  deck  did  he 
usually  work  ? 

A.  No  particular  place  ;  he  worked  any- 
where, between  the  guns  where  it  was  dry. 

Q.  You  say  you  were  ordered  to  put 
away  the  handspikes  and  such  things  ;  did 
you  make  known  that  order  to  the  crew  ? 

A.  Yes,  sir,  the  word  was  passed  round 


the  decks  that  everything  was  to  be  picked 
up  and  stowed  away. 

Q.  You  say  you  put  them  between  the 
first  and  second  cutters  ;  could  not  any  one 
have  got  at  them  there  easily  ? 

A.  Not  handily,  and  without  lifting  the 
boat-cover,  and  creeping  in  after  them. 

Q.  Was  not  a  strict  watch  kept  ? 

A.  Suoh  orders  were  given  to  all  the 
petty  officers  ? 

Q.  Well,  who  got  these  things  from  be- 
tween the  cutters  ? 

A.  That  I  can't  tell ;  I  don't  know. 

Q.  The  watch  being  strict,  and  as  you 
know  not  who  took  them  out,  would  you  not 
conclude  it  an  easy  matter  to  get  these 
things  ?  were  not  the  nights  light  ? 

A.  At  12  o'clock  that  night,  when  the 
watch  was  called,  I  noticed  Wilson  go  to 
the  stern  of  the  launch  ;  I  did  not  know 
whether  he  went  for  his  jacket,  or  not ;  be- 
twixt nine  and  ten,  and  ten  and  eleven,  I 
saw  Golderman  and  Sullivan  about  the  stern 
of  the  boats. 

Q.  Was  Wilson  just  called  for  his  watch, 
or  was  he  just  relieved  ? 

A.  He  belonged  to  the  larboard  watch, 
which  was  just  called. 

Q.  Did  you  not  see  him  put  on  his  jacket 
— did  you  not  see  him  have  it  in  his  hand  ? 

A  When  he  came  from  the  stern  of  the 
boat,  so  as  I  could  see  him  properly,  he  had 
his  jacket  on  his  arm. 

Q.  How  close  were  you  to  him? 

A.  About  four  feet  from  him,  on  the  oth- 
?r  side  of  the  deck. 

Q.  Did  you  see  him,  when  he  came  up 
rom  below  ?  How  many  minutes  had  the 
watch  been  called  ? 

A.  I  did  not  see  him  as  he  came  up 
the  fore-hatch,  and  I  was  sitting  aft  the 
mainmast ;  the  watch  had  been  called  ten 
minutes. 

BY  CAPTAIN  PAGE. 

Q.  After  you  removed  the  hand-spikes 
and  heavers  from  the  stern  of  the  launch, 
did  you  observe  any  persons  go  there  appa- 
rently to  look  after  them  ? 

A.  These  that  I  have  mentioned,  Sulli- 
van, Golderman,  and  Wilson  ;  I  suspected 
hem  of  putting,  them  there  ;  saw  nothing 
about  jackets  with  the  other  two. 

BY  JUDGE  ADVOCATE. 

Q.  Where  were  you,  when  you  noticed 
Sullivan  and  Golderman  ? 


NAVAL  COURT  MARTIAL. 


141 


A.  I  was  sitting  on  the  anchor,  stowed 
by  the  mainmast,  for  the  purpose  of  watch- 
ing; they  nearly  touched  me  when  looking 
into  the  stern  of  the  launch. 

Q.  Had  you  been  about  there  the  whole 
evening  ? 

A.  The  whole  watch,  only  what  time  I 
took  to  go  round  the  battery. 

BY  COMMODORE    DOWNES. 

Q.  Were  the  men  allowed  to  keep  their 
pea-jackets  about  the  boats,  or  was  there  an 
order  against  their  doing  so  ? 

A.  There  was  an  order  against  it. 

BY    JUDGE    ADVOCATE. 

Q.  How  is  it  possible,  you  being  so  near, 
that  those  persons  could  have  lifted  the 
cloths,  and  have  got  into  the  cutters,  with- 
out your  seeing  them  ? 

A.  I  was  on  the  larboard  side. 

Q.  Would  not  you  have  heard  the  noise  ? 

A.  I  might  have,  or  they  might  have  got 
in  from  six  to  eight,  when  I  was  below ; 
they  could  have  got  in  without  my  hearing 
them. 

Q.  Did  you  put  these  things  in  the  cut- 
ter ? 

A.  I  had  stowed  them  away  in  the  hold, 
and  found  them  afterward  in  the  stern  of 
the  launch,  and  then  put  them  in  the  cutter. 

Q.  Do  you  know  whether,  or  not,  the 
business  of  the  ship  had  made  it  necessary 
to  bring  any  of  these  things  from  the  hold  ? 

A.  No  use  for  them  that  day;  they  had 
been  stowed  away  four  or  five  days. 

Q.  How  do  you  know  then  when  they 
were  first  brought  from  the  hold  ? 

A.  I  don't  know  that ;  the  first  I  know 
of  them  was  that  evening ;  I  had  not  seen 
them  about  the  decks. 

Q.  Did  you  speak  to  Wilson,  or  those 
men,  about  it  ? 

A.  No,  sir. 

Q.  Did  you  not  report  it,  and  when  ? 

A.  I  did  not  report  it. 

Q.  When  did  you  first  say  anything  about 
it? 

A.  At  the  court  of  inquiry;  I  don't  rec- 
ollect to  have  mentioned  it  at  the  council 
of  officers. 

Q.  Do  you  mean  that  before  that  you  had 
told  it  to  no  officer  ? 

A.  I  mentioned  it  to  no  officer  before 
that. 

Q.  How  is  this,  if  you  thought  the  brig 


in  danger  from  mutineers,  and  you  thought 
this  designed  for  an  evil  purpose  ? 

A.  I  wanted  to  get  more  proof  of  it ;  the 
knife,  which  I  had  more  proof  of,  I  re- 
ported. 

Q.  Did  you  not  then  know  that  these 
men  were  all  suspected  by  the  1st  lieuten- 
ant— who  were  they  suspected  by,  him  or 
by  you  ? 

A .  No,  sir ;  it's  more  than  I  can  say, 
who  the  1st  lieutenant  suspected;  I  sus- 
pected Wilson,  Golderman,  and  Sullivan, 
of  being  in  the  mutiny. 

Q.  When  did  Lieut.  Gansevoort  first  talk 
with  you  about  the  mutiny  ? 

A.  The  night  of  the  arrest  of  Mr.  Spen- 
cer, he  called  all  the  petty  officers,  let  them 
know  there  was  a  plot  on  board,  and  told 
them  to  be  on  their  guard  against  it ;  he 
told  us  there  was  a  plot  on  board  to  murder 
the  officers,  take  the  vessel,  and  throw  that 
part  of  the  crew  overboard  they  did  not  see 
fit  to  keep. 

Q.  Did  he  tell  you  how  he  knew  this,  or 
say  anything  about  papers  in  Mr.  Spencer's 
locker  ? 

A.  No,  sir. 

Q.  Did  he  ask  the  petty  officers*  whether 
they  had  heard  of  it  ? 

A .  No,  sir ;  he  told  us  there  was  a  plot, 
to  be  on  our  guard  against  it. 

Q.  Was  not  Cromwell  there  then  ? 

A.  Yes,  sir. 

Q.  Would  Cromwell  talk  often  to  the 
boys,  during  the  last  of  the  cruise,  in  his 
watches — very  often  ? 

A.  Yes,  sir,  very  free  with  them  ;  he  had 
a  mob  round  him  almost  all  the  time. 

Q.  Did  Lieut.  Gansevoort,  on  the  day  of 
execution,  ask  the  petty  officers  if  Cromwell 
was  innocent  ?  state  what  occurred. 

A.  I  can't  say ;  I  was  stationed  forward 
at  No.  1  gun. 

Q.  After  the  execution  to  your  arrival, 
were  the  crew  made  to  lie  down  in  their 
watches,  and  were  the  orders,  that  if  any 
one  raised  himself  up,  he  would  be  shot? 

A.  There  was  an  order  for  them  to  keep 
still,  not  to  get  into  groups,  and  to  keep 
from  sky-larking ;  no  orders  about  lying 
down. 

Q.  Did  you  ever  hear  or  know  anything 
of  the  mutiny  till  Mr.  Spencer's  arrest  ? 

A.  No,  sir. 

Q.  Did  you  give  it  as  your  belief  before 
the  council  of  officers,  that  Mr.  Spencer, 


142 


PROCEEDINGS  OF  THE 


Cromwell,  and  Small,  had  a  plan  of  mutiny 
before  leaving  New  York  ? 

A.  I  said  that  I  believed  there  was  a  plot 
from  the  time  we  left  New  York ;  for  after 
I  found  out  that  there  was  a  plot,  my  mind 
went  back  to  what  I  saw  here. 

BY  COMMANDER  MACKENZIE. 

Q.  In  reply  to  questions  from  the  judge 
advocate,  you  have  stated  that  you  were 
willing  to  leave  Mr.  Spencer,  Cromwell, 
and  Small,  astern,  and  that  you  would  have 
been  willing  to  leave  Wilson  also  astern, 
had  he  been  capable  of  navigating  the  ves- 
sel— would  you  have  been  willing  thus  to 
have  disposed  of  them,  if  you  did  not  be- 
lieve each  and  all  of  them  deeply  engaged 
in  the  mutiny,  and  that  it  was  necessary  for 
the  safety  of  the  vessel  ? 

A.  I  supposed  they  were  all  deeply  im- 
plicated, and  that  the  vessel  was  not  safe. 

Q.  You  have  said  you  could  kick  down 
the  store-room  door ;  could  you  not  kick 
down  any  bulkhead,  or  door,  in  the  Somers  ? 

A.  Yes,  sir. 

Q.  Could  you  throw  a  thirty-two  pound 
shot  through  any  bulkhead  in  the  Somers  ? 

A.  Yes,  sir. 

Q.  Were  the  round  shot  within  reach  of 
the  crew  ? 

A.  Yes,  sir. 

The  testimony  of  Henry  King  was  here 
closed ;  his  evidence  was  read  to  him,  and 
corrected  by  him. 

William  Collins  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER   MACKENZIE. 

Q.  What  is  your  name,  age,  and  rank — 
were  you  on  board  the  Somers  in  her  last 
cruise  ? 

A.  My  name  William  Collins  ;  my  age 
38;  my  rank  gunner  until  the  arrest  of 
Cromwell ;  after  that,  boatswain's  mate  on 
board  of  the  Somers,  in  her  last  cruise. 

Q.  What  was  the  discipline  of  the  crew 
of  the  Somers,  until  her  arrival  at  Madeira  ? 

A.  Very  good. 

Q.  What  was  it,  after  she  left  Madeira  ? 

A.  Not  so  good  as  before. 

Q.  What  was  the  subordination  just  be- 
fore the  arrest  of  Mr.  Spencer  1 

A.  'Twas  not  very  good. 

Q.  After  the  maintop-gallant-mast  was 
carried  away,  and  the  new  one  was  pointed, 


and  the  mast  rope  rove  full  for  ridding,  what 
occurred  under  your  observation  ? 

A.  I  was  ordered  by  the  officer  of  the 
deck  to  keep  the  mast  rope  manned,  and  I 
looked  round  and  found  they  had  all  left  the 
mast  rope,  but  three  or  four.  I  went  forward 
and  told  them  to  go  aft,  and  man  the  mast 
rope ;  they  would  not  go ;  I  told  them  two 
or  three  times.  I  went  aft,  and  told  the 
officer  of  the  deck  that  they  would  not  come 
aft,  and  that  he  had  better  send  an  officer 
forward ;  he  went  forward  himself,  and  took 
a  boatswain's  mate  with  him,  and  drove 
them  aft ;  they  came  stamping  and  making 
a  rush  ;  Mr.  Gansevoort  came  to  me,  looked 
forward,  and  asked  what  was  the  matter. 
I  told  him  the  officer  of  the  deck  was  send- 
ing the  boys  aft  to  man  the  mast  rope ;  he 
went  and  told  Commander  Mackenzie.  At 
that  time  Commander  Mackenzie  had  drawn 
a  pistol  and  pointed  it  forward ;  Mr.  Ganse- 
voort went  and  told  him  what  was  the  mat- 
ter— the  mast  was  then  swayed  up. 

Q.  Did  you  ever  know  a  crew  before  to 
approach  the  quarter-deck  in  that  manner  ? 

A.  No,  sir. 

Q.  Did  you  then  believe,  and  do  you  now 
believe  that  the  vessel  could  have  been 
brought  by  her  officers  into  any  port,  if  the 
execution  had  not  taken  place  ? 

A.  I  don't  think  she  could ;  she  might 
have  been  ;  it  would  have  been  dangerous  ; 
I  should  have  been  afraid. 

CROSS-EXAMINED   BY  THE  JUDGE  ADVOCATE. 

Q.  When  were  you  first  told  you  were 
to  take  Cromwell's  place  ? 

A.  A  few  minutes  after  he  was  confined, 
I  was  ordered  to  do  boats  wain's-mate  duty. 

Q.  Whose  duty  was  it  to  have  the  mast 
rope  manned — the  boatswain's  mate  ? 

A.  Yes,  sir ;  if  an  order  was  given,  it  is 
my  duty  to  see  it  obeyed. 

Q.  Give  your  words  when  you  went  for- 
ward, and  ordered  the  crew  aft  to  the  rope  ? 

A.  I  went  forward  and  said,  "  What  did 
you  leave  the  mast  rope  for?  go  aft,  and 
man  it  again  ;"  they  did  not  answer,  and 
nobody  moved  ;  I  repeated  the  order  two  or 
three  times. 

Q.  Had  you  been  boatswain's  mate  more 
than  half  an  hour  ? 

A.  I  can't  say  whether  an  hour  or  half 
an  hour ;  all  the  crew  knew  I  was  in  the 
habit  of  carrying  on  duty. 

Q.  After  the  arrest  of  Mr.  Spencer,  were 


NAVAL  COURT  MARTIAL. 


143 


not  the  crew  cautioned  against  coming  aft 
of  the  mainmast  ? 

A.  Yes,  sir ;  they  were  ordered  to  keep 
forward  of  the  mainmast,  except  for  duty. 

Q.  Were  they  told  they  would  be  shot 
for  coming  aft  improperly. 

A.  No,  sir  ;  I  never  heard  them  told  that. 

Q.  What  were  the  crew  about  when  you 
first  spoke  to  them  ? 

.A.  Standing  up,  talking — some  lying 
against  the  bulwarks  and  stays. 

Q.  Have  you  ever  got  liquor  aboard  of 
that  vessel ;  and  if  so,  who  from  ? 

A.  I  never  got  any. 

Q.  Did  you  ever  get  any  from  Lieutenant 
Gansevoort  ? 

A.  Never  before  we  arrived  in  New 
York ;  the  first  liquor  I  saw  while  we  were 
gone  was  then. 

Q.  Did  you  give  it  as  your  opinion  before 
the  council  of  officers,  that  the  executed 
persons  should  be  put  to  death  ? 

A.  No,  sir ;  I  did  not  say  that ;  I  was 
not  asked  that. 

Q.  What  was  you  asked  ? 

A.  I  was  asked  if  I  thought  the  ship  would 
be  safer  with  these  men  out  of  her,  and  I 
said  I  did. 

Q.  What  did  you  mean?  Was  not  the 
death  spoken  of  ? 

A.  No,  sir  ;  they  said  out  of  the  ship  ; 
they  did  not  say  how  they  were  to  go  out. 

Q.  Did  you  not  understand  by  it  that  they 
were  to  be  put  to  death  in  some  form  ? 

A.  No,  sir. 

Q.  What  did  you  understand  from  the 
inquiry  there  made,  if  any,  as  to  how  these 
people  were  to  be  disposed  of  ? 

A.  I  did  not  understand ;  I  was  asked  if 
the  ship  would  be  safer  with  them  out  of 
her,  and  I  said  she  would. 

Q.  Had  no  idea  that  the  death  of  these 
people  was  then  under  deliberation  ? 

A.  Not  at  that  time  ;  I  knew  they  were 
going  to  do  something  with  them. 

Q.  What  did  you  suppose  was  to  be  done 
with  them  then  ? 

A.  I  did  not  know  what  to  think  about  it — 
perhaps  to  shoot  them  ;  I  did  not  know. 

Q.  Were  you  asked  if  the  vessel  could 
be  taken  into  port,  with  those  men  on  board, 
in  your  opinion — what  was  your  answer  ? 

.A.  I  was  asked  that  question,  and  told 
them  I  did  not  think  she  could. 

Q.  What  port  was  you  asked  about  ? 

A.  No  port  in  particular  was  mentioned. 


Q.  What  did  you  understand  from  the 
question  put  to  you  then,  as  to  the  port  ? 

A.  I  understood  before  that  we  were 
going  to  St.  Thomas,  and  thought  so  then ; 
no  port  was  mentioned. 

Q.  Were  you  asked  then  how  soon  these 
people  should  be  disposed  of  1 

A.  No,  sir. 

Q.  Were  you  surprised  or  not,  next  day, 
at  the  orders  for  execution  ? 

A.  No,  sir. 

Q.  Why  did  you  give  it  as  your  opinion 
that  the  safety  of  the  vessel  required  that 
these  people  should  be  put  out  of  the  way  ? 

A.  The  men  would  not  obey  orders — 
talking  among  themselves  about  the  deck, 
and  my  suspicions  of  the  mutiny. 

Q.  Have  you  ever  heard  or  seen  any- 
thing mutinous  in  Mr.  Spencer,  Cromwell, 
or  Small,  before  that  ? 

A.  No,  sir,  not  that  I  noticed. 

Q.  Did  you  hear  any  one  talk  about  res- 
cuing the  prisoners  ? 

A.  No,  sir. 

Q.  Have  you  ever  heard  any  one  talk 
anything  like  mutiny,  before  the  arrest  ? 

A.  No,  sir,  I  never  did. 

Q.  Was  not  the  chief  reason  with  you  for 
putting  to  death  those  three,  that  those  were 
all  the  persons  capable  of  navigating  the 
vessel ? 

A.  No,  sir  ;  I  was  afraid  of  the  rest  of 
the  crew  that  were  concerned  with  them 
rising  and  making  a  rescue. 

Q.  If  you  had  heard  or  seen  nothing  mu- 
tinous, how  could  you  think  others  were 
concerned  ? 

A.  After  the  arrest,  I  saw  things  which 
did  not  look  well — men  disobeying  orders, 
and  sticking  together — that  looked  mutinous. 

Q.  But  you  heard  no  one  talk  of  rising  ? 

A.  No,  sir ;  they  would  not  let  me  hear 
that ;  they  talked  among  themselves. 

Q.  Have  you  ever  since  heard  any  human 
being  of  that  crew  say  he  heard  any  propo- 
sition to  rescue  the  prisoners  ? 

A.  No,  sir. 

BY  COMMANDER  MACKENZIE. 

Q.  Had  you  not  observed  an  intimacy 
between  Mr.  Spencer  and  Cromwell,  such 
as  you  had  never  before  seen  between  an 
officer  and  a  foremast-man  ? 

A.  Yes,  sir,  I  have. 

The  testimony  of  William  Collins  was 


144 


PROCEEDINGS  OF  THE 


here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

The  accused  presented  a  paper,  request- 
ing the  reception  of  the  testimony  of  Wil- 
liam Clark,  a  witness  examined  before  the 
court  of  inquiry,  and  incorporating  therein 
the  extract  from  his  testimony.  The  court 
was  cleared,  and  on  the  opening  thereof, 
the  judge  advocate  announced  that  the  court 
had  decided  that  the  paper  be  received  with 
the  extract  of  the  record  of  the  court  of  in- 
oniry  expunged,  and  that  the  testimony  of 
Clark  could  not  be  received. 

MAY  IT  PLEASE  THE  COURT  :  The  coun- 
sel for  the  defence  now  offer  the  testimony 
of  William  Clark,  as  it  was  taken  before  the 
court  of  inquiry ;  he  having  deserted  from 
the  Somers,  and  it  being  entirely  impossible 
to  ascertain  where  he  is  to  be  found. 

It  is  a  coincidence  to  which  the  attention 
of  the  court  may  properly  be  drawn,  that 
Clark  and  Inglis,  two  of  the  boys,  who,  per- 
haps, most  clearly  prove  the  connexion  of 
Cromwell  with  the  mutiny,  have  both  de- 
serted during  the  present  proceeding.  In- 
glis was  fortunately  arrested  in  Philadelphia 
(which  was  not  his  home,  his  parents  re- 
siding in  the  city  of  New  York),  brought 
back,  and  has  been  examined  before  this 
court ;  Clark  has  succeeded  in  escaping 
altogether.  Both  these  boys  proved  before 
the  court  of  inquiry  what  Inglis,  English, 
and  Neville,  have  done  before  this  tribunal, 
that  they  saw  Spencer  and  Cromwell  in 
consultation  over  a  paper  with  pencil  marks 
upon  it,  and  both  identified  the  paper  as  one 
of  those  found  in  Mr.  Spencer's  locker,  and 
which  forms  a  perfect  record  of  the  plot. 

We  propose  now  to  corroborate  this  testi- 
mony by  that  of  Clark.  The  act  entitled, 
"  An  act  for  the  better  government  of  the 
navy  of  the  United  States,"  passed  April 
23d,  1800,  provides  (Act  42,  Sec.  2,  Art. 
2)  that  "  the  proceedings  of  courts  of  in- 
quiry shall,  in  all  cases  not  capital  or  ex- 
tending to  the  dismission  of  a  commissioned 
or  warrant  officer,  be  evidence  before  a  court 
martial,  provided  oral  testimony  can  not  be 
obtained." 

It  is  very  clear  that  this  provision  ex- 
cepting capital  cases  and  those  extending 
to  dismission,  is  inserted  for  the  benefit  and 
protection  of  the  accused,  and  that  it  is  not 
intended  to  include  evidence  which  may  be 
important  to  the  party  on  trial. 


The  meaning  of  that  use  is,  that  the  rec- 
ord of  the  court  of  inquiry  shall  always  [be 
received  where  ]  the  oral  testimony  can 
not  be  obtained,  unless  the  accused,  when 
his  life  or  commission  is  in  danger,  shall 
avail  himself  of  the  exception  in  the  act.  It 
was  never  intended,  nor  should  it  be  used, 
for  the  purpose  of  excluding  testimony  which 
may  be  important  to  the  defence. 

But  again,  the  charges  in  this  case  are  of 
very  different  magnitude  ;  of  the  five,  but  one 
is  for  capital  offence — the  others  are  for  op- 
pression, illegal  punishment,  and  conduct 
unbecoming  an  officer. 

In  regard  to  the  4th  and  5th  charges, 
which  are  for  unbecoming  conduct,  cruelty, 
and  oppression,  no  evidence  whatever  has 
been  adduced.  They  can  not,  consequently, 
by  any  possibility,  involve  the  loss  of  com- 
mission ;  nor  are  they  capital,  and  under 
these  charges  we  are  consequently  entitled 
to  the  introduction  of  this  evidence. 

If  the  court  shall  be  of  opinion  that  our 
construction  of  the  statute  is  erroneous,  we 
contend  that  this  evidence  is  admissible  on 
the  general  principles  which  govern  this 
branch  of  the  common  law. 

"  The  chief  reasons,"  says  one  of  our 
most  recent  and  valuable  writers  on  the 
subject  (Greenleaf  on  Evidence,  p.  193), 
"  for  the  exclusion  of  hearsay  evidence,  are 
the  want  of  the  sanction  of  an  oath,  and  of 
any  opportunity  to  cross-examine  the  wit- 
ness. But  when  the  testimony  was  given 
under  oath,  in  a  judicial  proceeding,  in 
which  the  adverse  litigant  was  a  party,  and 
when  he  had  the  power  to  cross-examine, 
and  was  legally  called  upon  so  to  do,  the 
great  and  ordinary  tests  of  truth  being  no 
longer  wanting,  the  testimony  so  given  is 
admitted  after  the  decease  of  the  witness, 
in  any  subsequent  suit  between  the  same 
parties. 

"  It  is  also  received  if  the  witness,  though 
not  dead,  is  out  of  the  jurisdiction,  or  can- 
not be  found  after  diligent  search,  or  is  in- 
sane, or  sick,  or  unable  to  testify,  or  has 
been  summoned,  but  appears  to  have  been 
kept  away  by  the  adverse  party." 

This  witness  is  out  of  the  jurisdiction, 
his  disappearance  is  attended  by  conceal- 
ment and  violation  of  duty ;  after  diligent 
search  he  is  not  to  be  found,  and  on  that 
ground  his  testimony  should  be  received. 
It  is  admitted  there  is  a  discrepancy  in  the 
American  cases  on  this  point.  In  some  of 


NAVAL  COURT  MARTIAL. 


145 


the  states  death  being  the  only  reason  suffi- 
cient to  excuse  the  nonproduction  of  the 
witness  himself,  and  in  others,  absence 
merely  being  held  to  suffice. 

The  writer  who  has  been  already  quoted, 
after  noticing  this  discrepancy  says,  "  If  the 
witness  is  gone  no  one  knows  whither,  and 
his  place  of  abode  can  not  be  ascertained 
by  diligent  inquiry,  the  case  can  hardly  be 
distinguished  in  principle  from  that  of  his 
death,  arid  that  it  would  seem  that  his  for- 
mer testimony  ought  to  be  admitted.  If  he 
is  merely  out  of  the  jurisdiction,  but  the 
place  is  known,  and  his  testimony  can  not 
be  taken  under  a  '  commission,'  it  is  a  proper 
case  for  the  judge  to  decide  in  his  discretion 
and  upon  all  the  circumstances,  whether  the 
purposes  of  justice  will  be  brought  forward 
by  issuing  such  commission  or  by  admit- 
ting the  proofs  of  what  he  formerly  testi- 
fied." 

We  then  offer  to  prove  that  inducements 
have  been  held  out  to  the  witness,  Clark,  to 
absent  himself. 

The  common  law  rule  is,  that  the  testi- 
mony of  the  witness  examined  on  a  previous 
trial  is  evidence  on  a  second  trial,  provided, 
in  the  language  of  the  cases,  he  has  been 
u  spirited  away,"  and  of  this  small  evidence 
is  necessary. 

We  can  show  in  regard  to  Clark  that 
when  at  the  naval  hospital,  shortly  after  his 
evidence  had  been  given  before  the  court 
of  inquiry,  he  received  a  letter  directing 
him  to  apply  at  a  house  in  the  city  of  New 
York,  where  he  would  receive  funds  and 
assistance  to  proceed  to  England,  his  native 
country  ;  since  then  nothing  has  been  heard 
of  him. 

This  fact,  connected  with  the  disappear- 
ance of  Inglis,  we  suppose  abundantly 
sufficient  to  satisfy  the  discretion  of  the 
court  that  improper  means  have  been  used 
to  secure  the  absence  of  this  witness,  and 
on  that  ground  to  authorize  the  admission 
of  his  testimony. 

We  then  very  respectfully  offer  the  testi- 
mony of  Clark  on  these  three  grounds  : — 

First,  It  is  expressly  authorized  by  the 
statute. 

Second,  He  is  a  witness  beyond  the 
jurisdiction,  and  whose  testimony  can  in  no 
other  way  be  obtained. 

Third,  improper  means  have  been  used 
to  secure  his  absence. 

19 


And  in  these  grounds  we  submit  the  mat- 
ter to  the  court. 

THEODORE  SEDGEWICK, 
of  Counsel. 

The  Court  then  adjourned  to  Monday, 
March  6,  at  half-past  10  o'clock. 


NAVY  YARD,  1 

Brooklyn,  March  6,  1843.  J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

"       Bolton,  "        Gwinn, 

"       Turner,  "        Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "        Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 
Henry  King  recalled. 

BY    COMMANDER    MACKENZIE. 

Q.  Did  you  notice  any  insubordination 
on  the  part  of  Cromwell,  on  the  morning 
after  Mr.  Spencer's  arrest  ? 

A.  Yes,  sir;  his  duty  was,  in  morning 
watches,  to  go  aloft  to  inspect  the  rigging 
to  overhaul  the  chafes,  the  morning  after 
Mr.  Spencer's  arrest  he  did  not  go  aloft. 
At  8  o'clock  Mr.  Gansevoort  spoke  to  him 
about  it,  ordered  him  aloft  and  he  did  not  go. 

Q.  Were  you  on  deck  when  the  maintop- 
gallant  mast  was  carried  awayl  If  so, 
state  all  that  occurred  ? 

A.  I  was  sitting  on  No.  2  gun,  and 
Cromwell  and  Small  were  sitting  on  the 
bitts,  when  the  order  was  given  "  Haul 
through  the  slack  of  the  weather-royal-brace, 
and  to  leave  the  lee  one  slack."  Small 
laid  hold  of  the  brace,  I  told  him  to  be 
careful,  there  was  a  boy  on  the  yard,  he 
gave  the  brace  a  very  heavy  jerk,  and  the 
wreck  of  the  mast  fell  to  windward. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Was  Cromwell  reported  or  punished 
for  not  going  aloft  the  day  after  Mr.  Spen- 
cer's arrest  ? 

A.  No,  sir. 

Q.  Do  you  know  what  explanation  he 
gave  Lieutenant  Gansevoort  ? 


146 


PROCEEDINGS  OF  THE 


A.  He  turned  off  in  a  sort  of  sulky  man- 
ner, his  face  forward. 

Q.  Do  you  know  that  he  did  not  go  aloft, 
or  that  other  orders  were  not  soon  given  so 
as  to  prevent  it ? 

A.  I  watched  him,  he  did  not  go  aloft, 
no  other  orders  were  given  him. 

Q.  Did  you  ever  hear  or  know  of  any 
such  disobedience  passing  unpunished  at 
once,  on  board  a  man-of-war  ? 

A.  No,  sir. 

Q.  Was  not  Small  sewing  his  clothes  at 
the  time  of  the  order  to  pull  the  brace  ? 

A.  He  had  got  up  and  sat  on  the  bitts 
with  Cromwell. 

Q.  How  long  had  he  stopped  sewing  be- 
fore ? 

A.  Fifteen  minutes. 

Q.  Where  did  he  go  after  the  pull  ? 

A.  Went  aloft ;  he  and  Cromwell  both. 

Q.  Did  you  not  see  him  go  back  and  sit 
on  the  gun-slide  before  the  mast  was  carried 
away? 

A.  No,  sir. 

Q.  Who  pulled  with  Small  ? 

A.  I  can't  say  ;  I  did  not  take  that  much 
notice  of  the  boys,  Van  Norden  was  near 
him,  I  think. 

Q.  Did  you  see  Corny? 

A.  No,  sir ;  I  don't  recollect  of  seeing 
him. 

Q.  Did  you  see  Sears  ? 

A.  No,  sir. 

Q.  Who  was  with  you  on  the  second  gun  ? 

A.  I  think  the  boy  Swift  was  as  near 
me  as  any  one  ? 

Q.  Is  Swift  in  your  mess  or  watch  ? 

A.  No,  sir. 

Q.  Have  you  talked  with  Swift  about  it? 

4.  No,  sir. 

Q.  Who  had  orders  to  slack  the  lee- 
brace  ? 

A.  I  can't  say  who  was  to  the  lee-brace  ; 
I  was  to  windward. 

Q.  Had  the  lee-brace  been  slacked,  would 
not  the  mast  have  been  relieved  of  the 
strain  ? 

A.  It  was  slack. 

Q.  Did  not  hauling  on  the  weather  brace 
tighten  the  lee  one  ? 

A.  Yes,  sir,  it  was  fast. 

Q.  If  those  at  the  lee-brace,  did  not  keep 
it  slack  if  the  mast  went,  would  it  be  the 
fault  of  those  who  pulled  on  the  weather 
ones  ? 

A .  Some  part  of  it  would  be  the  fault  of 


those  at  the  lee-brace  ;  I  could  have  carried 
away  the  mast,  if  the  brace  had  been  fast. 

BY  CAPTAIN   DOWNES. 

Q.  Did  you  observe  whether  Small 
hauled  upon  the  royal  brace  after  ordered 
to  belay  it  ? 

A.  Yes,  sir,  twice  or  three  times. 

BY  THE  JUDGE  ADVOCATE. 

Q.  If  the  lee-brace  had  been  slack  could 
you  have  pulled  over  the  mast  ? 
A.  Yes,  sir,  much  easier. 

BY   COMMANDER    OGDEN. 

Q.  If  the  mast  had  been  carried  away 
by  the  lee-brace,  would  the  wrecfc  of  the 
mast  have  fallen  to  windward  ? 

A.  No,  sir. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Would  a  stationary  rope  holding  to 
one  side,  keep  anything  from  falling  to  the 
other,  if  the  pull  was  toward  the  other  side  ? 

A.  The  brace  would  slack  up  as  the 
mast  went  forward. 

Q.  Would  not  the  pitch  of  the  ship  have 
caused  the  mast  to  go  to  the  windward  ? 

A.  No,  sir ;  she  made  no  weather  roll  at 
the  time. 

Q.  Did  you  ever  hear  Small  charged 
with  having  pulled  that  mast  away  ? 

A.  Not  before  the  court  of  inquiry ;  I 
thought  myself  it  was  done  purposely,  but 
did  not  mention  it  because  I  had  no  chance. 

Q.  Did  you  think  at  the  time  that  Small 
pulled  it  away  designedly  ? 

A.  Yes,  sir. 

Q.  Did  you  ever  speak  of  this  to  one  hu- 
man being  until  your  arrival  ? 

A.  I  think  I  told  it  to  Mr.  Gansevoort 
before  the  court  of  inquiry  ;  I  was  not  ask- 
ed before  the  court  of  inquiry  anything 
about  it ;  I  did  not  have  an  opportunity  to 
mention  it  there :  I  have  said  that  it  was 
done  on  purpose,  and  even  the  little  boys 
thought,  so. 

Q.  Did  you  tell  any  one  that  Small  had 
done  it  on  purpose  till  your  arrival  ? 

A.  I  have  told  that  I  thought  it  was  done 
on  purpose.  I  have  had  that  talk  with 
several ;  with  Mr.  Gansevoort  I  think  I 
have. 

Q.  I  repeat  the  question,  did  you  tell  any 
one  before  your  arrival  that  Small  had  pull- 
ed the  mast  away  ? 


NAVAL  COURT  MARTIAL. 


147 


A.  I  told  them  I  thought  he  did,  I  did 
not  say  right  out  he  had  done  it  purposely ; 
it  was  the  common  talk  among  all  hands, 
and  is  to  this  day  among  the  boys. 

Q.  Whom  did  you  tell,  before  your  arri- 
val here,  you  thought  Small  had  pulled 
away  ihe  brace  by  design  ? 

A.  I  don't  recollect  the  names,  I  don't 
recollect  telling  Mr.  Gansevoort,  but  I  think 
I  have. 

Q.  Did  you  tell  any  one  these  thoughts 
about  Small  before  the  execution  ? 

A.  No,  sir. 

Q.  After  the  arrest  was  you  not  confided 
in  by  Lieutenant  Gansevoort,  and  did  he 
not  talk  with  you  about  suspicious  men  and 
things  1 

A.  Yes,  sir,  he  talked  with  me  about 
suspicious  characters  and  things. 

BY    CAPTAIN    DOWNES. 

Q.  Do  you  know  whether  Lieutenant 
Gansevoort  knew  that  Cromwell  did  not  go 
aloft  when  ordered  to  by  him  ? 

A.  I  don't  think  he  did,  he  ordered  him 
and  went  aft. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Why  did  you  not  report  Cromwell's 
disobedience,  if  Lieutenant  Gansevoort  did 
not  notice  it  ? 

>A.  It  was  not  my  duty. 
Q.  Had  you  not  told  Lieut.  Gansevoort 
you   thought    Cromwell  a  suspicious  man 
before  this  ? 

A.  Yes,  sir. 

Q.  Had  not  Lieut.  Gansevoort  made  it 
your  duty  to  notice  and  report  anything  sus- 
picious ? 

A.  Yes,  sir. 

Q.  Was  you  not  the  very  man  who  first 
mentioned  to  Mr.  Gansevoort  that  Cromwell 

(was  a  suspicious  person  ? 
A.  I  can't  say  for  that. 

Q.  When  was  it  you  first  told  Lieut. 
Gansevoort  that  Cromwell  was  a  dangerous 
man — the  night  of  Mr.  Spencer's  arrest,  or 
the  morning  after  ? 

A.  The  night  of  Cromwell's  arrest,  about 
fifteen  minutes  or  half  an  hour  before. 

Q.  Did  you  mention  your  reasons  to  Mr. 
Gansevoort  for  suspecting  him  ? 

A.  Mr.  Gansevoort  came  to  me  on  Sun- 
day evening  (the  evening  the  mast  was  car- 
ried away),  and  said,  "  King,  I  don't  like 
Cromwell's  looks."  He  said  Cromwell  all 


that  day  could  not  look  up  to  him,  could  not 
look  him  in  the  face.  Cromwell  used  to  be 
talking  Jo  him  about  the  rigging  every  time 
he  went  forward.  I  said  I  had  suspicions 
of  him  too ;  he  seems  like  a  man  out  of 
his  head  ;  since  Mr.  Spencer's  arrest,  he ' 
had  called  the  wrong  watch,  and  did  not 
seem  to  mind  the  orders  that  were  passed. 
I  had  my  suspicions,  because  I  had  seen 
him  before  the  arrest  taking  the  stars  at 
night  with  Cromwell,  and  Mr.  Spencer  giv- 
ing him  liquor,  and  their  being  intimate  to- 
gether. 

Q.  Did  you  not  tell  him  then  about  Crom- 
well's not  having  obeyed  his  order  that 
morning  ? 

A.  I  don't  recollect  telling  him  that  time, 

Q.  Did  you  ever  hear  anything  of  a  mu- 
tiny until  the  arrest  ? 

A.  No,  sir;  not  till  the  arrest  of  Mr. 
Spencer. 

BY    COMMANDER    MACKENZIE. 

Q.  Before  Small  stopped  jerking  on  the 
weather-main-royal-brace,  did  you  hear  the 
commander  repeat  the  order  to  belay  ? 

A.  I  heard  the  order  given  twice  to  be- 
lay ;  I  did  not  notice  who  gave  it. 

Q.  With  the  royals  hoisted  taught  up, 
and  the  leeches  taught,  would  not  the  haul- 
ing on  the  weather-brace  drag  the  royal- 
mast  forward,  whether  the  lee-brace  was 
taught  or  slack  ? 

A.  Yes,  sir ;  there  were  no  backstays-  to 
the  mast. 

Q.  When  you  saw  Small  hauling  violent- 
ly on  the  weather-main-royal-brace,  after 
you  had  told  him  to  be  careful,  as  there  was 
a  boy  on  the  yard,  and  after  the  order  had 
been  repeatedly  given  to  belay,  did  you  not 
fear  that  he  would  carry  away  the  mast  ? 

A .  I  expected  the  boy  to  fall  overboard, 
or  on  the  deck. 

The  testimony  of  Henry  King  was  here 
closed  ;  his  evidence  was  read  to  him,  and 
corrected  by  him. 

Thomas  Dickenson  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY   COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  your  age,  your 
rank  ?  Were  you  on  board  the  Somers  in 
her  late  cruise  ? 

A .  My  name  is  Thomas  Dickenson,  my 


148 


PROCEEDINGS   OF  THE 


age  38  years;  I  was  carpenter's  mate  on 
board  the  Somers  in  her  last  cruise. 

Q.  What  was  the  subordination  of  the 
crew  before  the  arrival  of  the  Somers  at 
Madeira  ? 

A.  Very  good. 

Q.  What  was  the  subordination  of  the 
crew  subsequent  to  her  departure  from  Ma- 
deira ? 

A.  Growing  worse,  declined. 

Q.  What  was  the  subordination  shortly 
before  the  arrest  of  Mr.  Spencer  ? 

A.  Very  bad. 

Q.  What  was  the  cause  of  the  falling  off 
of  the  discipline,  and  what  was  the  conduct 
of  Cromwell  in  this  respect  ? 

A.  Cromwell's  conduct  was  very  bad — 
made  too  free  with  the  boys,  and  making 
remarks  when  an  order  was  given  from  the 
quarter-deck,  damning  and  cursing  the  bad 
discipline,  by  his  uniting  with  the  boys,  and 
Mr.  Spencer  likewise  ;  it  continued  growing 
worse  until  the  execution,  then  there  was  a 
change  right  away  for  the  better. 

Q.  Have  you  noticed  any  private  con- 
versation between  Mr.  Spencer  and  Crom- 
well ? 

A.  Yes,  sir,  a  great  deal ;  the  last  ten 
days  or  more  before  his  arrest,  they  were 
continually  together  talking ;  directly  after 
we  left  the  coast  of  Africa,  Mr.  Spencer 
came  and  sat  on  the  bench  where  I  w*as  at 
work,  and  commenced  a  conversation  about 
the  brig ;  after  that  he  and  Cromwell  talked 
together — Cromwell  in  Spanish,  and  Mr. 
Spencer  would  answer  in  English.  I  said 
to  Mr.  Spencer,  "  You  have  the  advantage  of 
me  ;  I  can't  understand  what  you  are  say- 
ing." Mr.  Spencer  said,  "  Never  mind,  you 
will  know  by-and-by."  Another  time  I  was 
standing  aft,  between  three  and  four  bells 
midwatch,  two  or  three  days  before  Mr. 
Spencer's  arrest ;  I  went  forward,  going  to 
the  head ;  as  I  went  forward,  I  saw  some 
one  in  under  the  booms,  near  the  galley- 
pipe  ;  I  paused,  and  not  seeing  an  officer  on 
ihe  forecastle,  I  turned  back  and  looked  in  ; 
saw  Mr.  Spencer,  Cromwell,  and  another 
man,  on  the  other  side  of  the  hatch  ;  I  could 
not  tell  exactly — I  judged  it  to  be  Small  ;  I 
went  to  the  head,  and  when  I  came  back, 
they  wejre  at  the  same  place  still ;  I  spoke 
to  them  and  passed  aft ;  I  took  my  station 
at  the  pumps  and  sat  down  ;  about  five  bells 
Commander  Mackenzie  came  on  deck ;  he 
stood  for  about  ten  minutes,  leaning  on  the 


round-house ;  from  there  he  went  as  far 
forward  as  the  gangway,  and  gave  the  order 
to  square  the  yards,  as  the  wind  was  haul- 
ing more  aft ;  Cromwell  and  Mr.  Spencer 
then  came  out ;  afier  the  duty  was  done,  they 
went  back  to  the  same  place,  and  about  sev- 
en bells  they  were  there  still. 

Another  time  Cromwell  tried  to  knock 
Sears  down  with  a  stick  of  wood  ;  the  boy 
was  ordered  to  break  out  the  hold  for  a  stick 
of  timber ;  Cromwell  picked  up  a  stick  of 
wood  and  hove  at  this  boy,  and  missed  him  ; 
he  picked  up  another,  and  swore,  "  By  God 
|  Almighty,  he  would  knock  out  his  brains,  if 
he  swung  to  the  yardarm  the  next  minute." 
I  halloed  at  him,  and  the  boy  settled  on  his 
knees,  expecting  his  death  blow  ;  he  stayed 
his  hand,  and  said  to  me,  "  Your  time  is 
damned  short." 

Another  time  I  made  a  pair  of  single 
sticks  for  the  first  lieutenant ;  I  was  putting 
them  in  the  storeroom,  and  he  said  they 
should  not  go  in  ;  I  told  him  they  were  the 
first  lieutenant's  ;  he  said  he  did  not  care  a 
damn  for  the  first  lieutenant,  and  that  he 
would  fix  me  before  long. 

Q.  Did  you  notice  anything  particular  in 
the  demeanor  of  Waltham  subsequent  to  the 
arrest  of  Mr.  Spencer  ? 

A.  Yes,  sir ;  I  noticed  him  being  very 
I  sullen  ;  he  appeared  to  be  muttering  threats 
— you  could  not  tell  what  he  said ;  he  was 
careless  about  his  duty. 

CROSS-EXAMINED   BY  THE  JUDGE  ADVOCATE. 

Q.  When  did  you  first  tell  anything  of 
this  story  about  Mr.  Spencer  and  Cromwell 
being  under  the  booms  a  day  or  two  before 
his  arrest  ? 

A.  The  day  after  Mr.  Spencer  was  ar- 
rested, I  told  it  to  Mr.  Gansevoort. 

BY   CAPTAIN  STOKER. 

Q.  Was  this  conduct  of  Cromwell  re- 
ported to  the  proper  authority  at  the  time  ? 

A.  I  ordered  Sears  to  report  it ;  I  don't 
know  that  he  did  ;  I  did  not  report  the  affair 
of  the  single-sticks. 

BY  THE  JUDGE  ADVOCATE. 

Q.  You  and  Cromwell  were  on  bad 
terms,  were  you  not  ? 

A.  No,  sir. 

Q.  Had  he  not  threatened  your  life 
twice  ? 

A.  I  did  not  notice  it  then,  and  only 


NAVAL  COURT  MARTIAL. 


149 


thought  it  was  a  way  of  expressing  him- 
self; not  till  after  the  arrest,  could  I  tell 
the  meaning  of  it. 

Q.  Did  you  before  the  council  of  officers 
give  it  as  your  opinion,  that  the  three  exe- 
cuted persons  should  be  put  to  death  ? 

A.  I  did. 

Q.  Who  else  did  you  then  say  were  in 
your  opinion  concerned  in  the  mutiny  ? 

A.  Wilson  for  one,  Waltham,  Kneasles, 
Golderman,  Sullivan,  Hamilton,  Van  Velt- 
zor,  Whitmore,  Garrabrantz  ;  I  don't  recol- 
lect of  suspecting  Godfrey  ;  I  might  have 
suspected  him  at  that  time.  ,:^l 

Q.  When  did  you  first  hear  of  the  muti- 
ny, and  from  whom  ? 

A.  After  Mr.  Spencer's  arrest ;  I  don't 
recollect  from  whom  at  first ;  Mr.  Ganse- 
voort  called  the  petty  officers  aft  the  even- 
ing of  Mr.  Spencer's  arrest. 

Q.  When  did  you  first  have  any  private 
conversation  with  Mr.  Gansevoort  about  it  ? 

A.  Next  morning  he  asked  me  what  I 
thought  of  it,  and  who  I  thought  were  in 
it ;  1  told  him  I  could  not  tell  who.  I  men- 
tioned the  circumstance  of  Mr.  Spencer  and 
Cromwell  being  together,  and  told  him  I 
suspected  Cromwell ;  he  said  he  suspected 
him  too ;  told  me  to  keep  a  good  lookout, 
and  to  see  what  was  going  on  forward. 

Q.  What  time  of  the  day  was  this  last 
conversation  with  Mr.  Gansevoort  ? 

A.  About  half-past  8  or  9  o'clock  in  the 
morning. 

Q.  Did  you  notice  Lieut.  Gansevoort  af- 
terward observing  Cromwell?  Would  he 
look  at  him  sternly  and  searchingly  ? 

A.  I  think  he  did.  I  forgot  to  say  I  no- 
ticed Cromwell  calling  the  larboard  watch, 
instead  of  the  starboard,  on  the  morning  af- 
ter Mr.  Spencer's  arrest. 

Q.  Did  Lieut.  Gansevoort  tell  you  when 
he  first  suspected  Cromwell  ? 

A.  No,  sir. 

Q.  Did  he  say  he  had  suspected  Crom- 
well from  the  first  discovery  of  Mr.  Spen- 
cer's plan  ? 

A.  I  don't  recollect  whether  he  said  so, 
or  not. 

Q.  Did  Mr.  Gansevoort  then  speak  of 
Cromwell  as  seaman  and  petty  officer,  and 
his  character  in  those  particulars  ? 

A.  No,  sir ;  I  mentioned  to  Mr.  Ganse- 
voort that  I  thought  he  was  the  most  dan- 
gerous man  in  the  vessel,  and  the  deepest 
man  in  the  plot. 


Q.  Did  Lieut.  Gansevoort  give  you  his 
reasons  for  suspecting  Cromwell  ? 

A.  No,  sir. 

Q.  If  an  officer  were  to  look  at  you  for 
a  day  sternly  and  searchingly,  so  as  to  make 
you  think  yourself  suspected  of  some  crime, 
would  not  your  manner  have  been  embar- 
rassed ? 

A.  Not  if  I  knew  I  was  innocent. 

Q.  Did  you  watch  Cromwell  closely  that 
day? 

A.  I  did,  sir. 

Q.  Was  it  you  who  said  to  Lieutenant 
Gansevoort,  when  on  the  day  of  execution 
he  came  to  the  petty  officers  to  ask  if 
Cromwell  was  innocent,  "  He  ought  to  have 
thought  of  that  before"  ? 

A.  Cromwell  was  talking  about  his  wife 
— then  I  mentioned  he  ought  to  have  thought 
of  his  dear  wife  before,  not  after  it  was  too 
late.  I  believe  I  did  make  two  or  three 
such  remarks  as  that  in  the  question. 

Q.  Was  not  this  after  the  captain  had 
been  staggered  by  his  protestations  of  inno- 
cence, and  Mr.  Spencer's  entreaty  that  he 
should  be  spared,  because  he  was  not  his 
accomplice  ? 

A.  Yes,  sir  ;  I  can't  say  whether  it  was 
before  or  after  this  that  I  made  the  remarks. 

Q.  What  was  the  inquiry  or  statement 
of  Lieut.  Gansevoort  of  the  petty  officers  at 
that  time,  before  you  made  this  remark  ? 

A.  I  recollect  of  his  asking  if  we  thought 
Cromwell  innocent  or  not ;  the  reply  was 
made,  "  They  thought  him  most  deeply  in, 
the  plot." 

Q.  Who  made  the  reply  ? 

A.  Some  of  the  petty  officers,  I  for  one,  I 
do  not  know  how  many ;  before  this,  when 
Mr.  Gansevoort  asked  me  if  Cromwell  was 
innocent,  I  said,  "  The  d — d  fool  on  the 
larboard  arm-chest,  and  the  d — d  rascal  on 
the  starboard ;"  Mr.  Spencer  was  on  the 
larboard  side,  Cromwell  on  the  starboard. 

Q.  Did  you  speak  out  your  mind  hearty 
and  strong  on  the  day  of  execution,  when 
Mr.  Gansevoort  asked  the  opinion  of  the 
petty  officers  as  to  Cromwell  ? 

A.  Yes,  sir. 

Q.  Had  you  hold  of  Cromwell's  whip? 

A.  No,  sir. 

Q.  Did  you  hear  Cromwell,  just  before 
death,  say  to  Mr.  Gansevoort  that  in  less 
than  six  months  he  would  find  out  that  he 
(Cromwell)  was  innocent? 

A.  No,  sir. 


150 


PROCEEDINGS  OF  THE 


Q.  Did  you  hear  any  proposition  to  make 
a  rescue  of  the  prisoners  while  Mr.  Spen- 
cer was  in  irons  ? 

A.  No,  sir. 

The  testimony  of  Thomas  Dickinson  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Captain  Joshua  R.  Sands  was  then  called, 
and  being  duly  sworn  by  the  president  of 
the  court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  your  rank,  your 
station  ?  did  you  superintend  the  equipment 
of  the  Somers  ? 

A.  My  name  is  Joshua  R.  Sands  ;  I  am 
a  commander  in  the  navy  attached  to  this 
yard ;  the  Somers  was  fitted  out  under  my 
inspection. 

Q.  Be  pleased  to  give  the  dimensions 
and  arrangement  of  the  Somers,  and  state 
what  convenience  the  Somers  affords  for 
the  confinement  of  prisoners  charged  with 
mutiny,  supposing  them  to  have  accomplices 
among  the  unconfined  crew. 

A.  She  is  266||-  tons  measurement ;  by 
English  measure,  137.35:  total  capacity, 
120  tons  ;  length  on  deck,  103  feet,  custom- 
house measurement ;  beam,  25  feet :  she 
has  a  trunk  cabin,  from  the  trunk  to  the  bin- 
nacle, 2  feet  4  inches  ;  thence  to  the  plat- 
form, 2  feet  8  inches :  this  refers  to  her  fit- 
ting out ;  about  3  feet  from  the  after  part 
of  the  platform  to  the  taffrail ;  her  trunk 
runs  forward  within  9£  inches  of  the  pumps ; 
about  6  feet  4  inches  between  the  trunk 
and  bulwarks ;  there  is  one  gun  which  will 
occupy  5  feet  of  space ;  between  the  trunk 
and  slide,  2  feet  passage-way  ;  the  booms 
run  forward  from  the  mainmast  45  feet ;  be- 
tween the  booms  and  bulwark,  6  feet  4 
inches  ;  3  guns  abreast  of  the  booms  ;  on 
each  side  forward  of  the  booms  comes  the 
galley-pipe,  foremast,  &c.,  &c.  ;  cabin,  8 
feet  long,  8  feet  wide  forward,  2  feet  aft ; 
from  the  foot  of  the  ladder  to  the  forward 
bulkhead,  5  feet:  this  bulkhead  is  made  of 
pine,  1  l-inch  stuff';  one  man  could  force 
the  whole  down ;  the  bulkhead  is  made  of 
three  sliding  pannels,  a  batten  above  on  the 
foreside,  and  sliding  bolts  overhead  on  the 
after  ;  the  wardroom  8  feet  long,  10  feet 
wide,  separated  from  the  steerage  by  another 
bulkhead,  made  of  the  same  materials  :  four 
men  could  force  this  bulkhead  ;  a  door  lead- 
ing into  the  steerage ;  the  ladder  from  the 


deck  leads  into  the  steerage ;  the  steerage  is 
8  feet  long,  14  feet  wide  ;  the  space  of  the 
steerage  is  taken  up  with  the  pumps  ;  there 
are  three  storerooms  in  the  steerage  ;  the 
steerage  is  separated  from  the  berthdeck  by  a 
bulkhead  similar  to  the  wardroom  bulkhead; 
between  the  beams  the  berth-deck  is  4  feet 
10  inches,  under  the  beams  it  is  about  4 
feet  4  inches ;  she  has  three  shot-lockers, 
to  which  access  is  had  through  the  berth- 
deck  ;  having  possession  of  the  berth-deck 
and  access  to  the  shot,  it  would  be  easy  to 
I  carry  away  the  bulkhead  with  them ;  the 
i  shot  weighs  32  Ibs.  I  don't  think  the  Som- 
ers had  any  convenience  for  confining  pris- 
oners ;  she  was  taken  up  with  ammunition 
and  stores,  and  what  was  necessary  to  make 
her  efficient  as  a  cruiser. 

Q.  Do  you  know  of  any  place  on  board 
the  Somers  more  secure  from  rescue  than 
the  quarter-deck,  for  the  confinement  of 
j  prisoners  charged  with  mutiny,  and  sup- 
|  posed  to  have  accomplices  among  the  un- 
confined crew  ? 

A.  No,  I  know  of  no  other  place  than 
the  quarter-deck,  and  there  one  or  two  pris- 
oners would  have  been  an  inconvenience  in 
working  the  vessel ;  below,  accomplices 
could  not  well  have  been  prevented  having 
communication  with  them ;  the  berth-deck 
consisted  of  moveable  hatches,  which  came 
within  three  or  four  inches  of  the  water- 
tanks,  well,  provisions,  wood,  &c.  ;  left 
little  or  no  room  in  the  hold  for  any  other 
things  that  were  generally  stowed  there. 

The  examination  of  Joshua  R.  Sands 
was  here  closed ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

Purser  Heiskill  recalled  for  the  purpose 
of  being  cross-examined. 

Q.  Did  you  observe  the  conduct  of  Mr. 
Spencer  on  the  day  of  his  arrest  ? 

A.  Yes,  sir :  I  saw  him  on  the  morning 
of  the  day  Wales  made  known  the  conspi- 
racy to  me,  lying  down  in  the  steerage, 
resting  his  head  on  his  hand ;  I  do  not 
recollect  if  other  officers  were  by.  I  imagine 
there  were  :  he  was  looking  steadily  tow- 
ard the  wardroom  door  ;  I  was  afraid  he 
would  observe  me  telling  Mr.  Gansevoort 
the  mutiny. 

Q.  Is  that  all  you  saw  of  him  that  day? 

A.  I  recollect  seeing  him  after  dinner, 
standing  on  the  jacob's-ladder ;  I  do  not 
recollect  observing  him  farther  that  day. 

Q.  Was  not  your  attention  particularly 


NAVAL  COURT  MARTIAL. 


151 


called  to  him  by  having  before  heard  Mr. 
Wales'  statement  ? 

A.  Yes,  sir. 

Q.  Is  this,  then,  all  that  you  recollect  of 
that  young  man  on  that  day  prior  to  evening 
quarters  1 

A.  All  that  I  can  now  think  of. 

Q.  Did  you  not  notice  him  doing  the 
usual  duties  of  his  station  on  that  day  ? 

A.  When  I  saw  him  on  the  jacob's-lad- 
der,  I  presume  he  was  at  his  station,  although 
I  am  not  positive  of  it. 

Q.  Did  you  hear  or  see  him  doing  any- 
thing toward  carrying  on  ship's  duty  ? 

A.  Not  that  I  remember. 

Q.  Did  you  notice  him  in  conversation 
at  all  with  the  young  officers  ? 

A.  Not  that  I  remember. 

Q.  Have  you  ever  heard  Mr.  Spencer 
speak  disrespectfully  of  the  commander  in 
the  steerage  ? 

A.  Not  that  I  know  of. 

Q.  How  many  relatives  or  connexions 
had  Commander  Mackenzie  among  the 
steerage  officers  ? 

A.  His  clerk  was  his  nephew  j  Mr.  De- 
londe  is  related  to  his  brother :  I  believe 
that  is  all. 

Q.  Did  you  exhibit  to  Commander  Mac- 
kenzie the  minutes  of  the  council  of  offi- 
cers ?  and,  if  so,  when  ? 

A.  I  did,  on  the  morning  of  the  1st  of 
December,  the  day  of  execution. 

Q.  Before  or  after  the  close  of  the  exam- 
ination, on  that  morning,  of  witnesses  ? 

A.  About  the  close. 

Q.  Had  you  had  them  in  your  custody 
the  preceding  evening  ? 

A.  They  were  never  out  of  my  posses- 
sion. 

The  testimony  of  Purser  Heiskill  was 
here  suspended  ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Tuesday),  March  7,  at  10  o'clock, 
A.  M. 


NAVY  YARD,          ) 
Brooklyn,  March  7,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 


Captain  Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved,  with  the  exception  of 
five  pages  not  copied. 

Purser  Heiskill  recalled. 

BY    JUDGE    ADVOCATE. 

Q.  Was  not  the  letter  of  the  officers  in 
reply  to  Commander  Mackenzie's  prepared 
before  you  went  from  the  wardroom  with 
the  minutes  of  the  examination  ? 

A.  No,  sir,  it  was  not. 

Q.  Had  not  the  officers  made  out  each 
his  letter  before  you  went  up  with  the 
minutes  ? 

^4.  I  do  not  remember. 

Q.  Before  the  examination  of  witnesses 
closed,  did  not  Lieutenant  Gansevoort  come 
into  the  wardroom  and  say  that  the  captain 
was  anxious  to  get  the  reply  of  the  officers 
to  his  letter  ? 

A.  I  do  not  remember. 

Q.  Do  you  not  remember  of  Lieutenant 
Gansevoort  saying  to  that  effect  in  the  ward- 
room on  the  first  of  December  ? 

.A.  I  do  not. 

Q.  What  hour  of  the  day  was  it  that  you 
took  up  the  minutes  to  Commander  Mac- 
kenzie ? 

A.  I  can  not  tell. 

Q.  If  you  can  not  tell  with  exactitude, 
approach  it  as  nearly  as  your  memory  will 
serve  you? 

A.  In  the  neighborhood  of  10  o'clock. 

Q.  Had  you  not  written  out  your  opinion 
then? 

A.  I  do  not  remember. 

Q.  Was  it  not  the  conversation  and  con- 
clusion of  the  officers  on  the  evening  of  the 
30th,  that  these  men  should  be  disposed  of? 

A.  I  think  not ;  I  speak  for  myself. 

A.  Are  the  papers  shown  you  the  origi- 
nal minuies  of  the  council  of  officers,  made 
by  you  at  that  time  ? 

A.  Yes,  sir. 

The  minutes  are  hereunto  annexed. 

VAN    VELZOR. 

"  A  good  while  since  Mr.  Spencer  said  he 
would  like  to  have  a  ship  to  go  to  the  north- 
west coast  j  Cromwell  and  him  was  thick; 


152 


PROCEEDINGS  OF  THE 


should  think  Cromwell  meant  to  join  Spen- 
cer to  take  this  vessel  ;  Spencer  thought 
he  could  raise  money  to  get  a  ship. 

"  My  reasons  for  believing  that  Cromwell 
meant  to  join  Spencer  in  taking  this  vessel, 
because  I  have  frequently  seen  them  in 
close  conversation  ;  have  never  had  any  diffi- 
culty with  Cromwell  except  once ;  he  had 
me  punished ;  I  do  not  bear  him  any  ill- 
will  ;  don't  think  that  Cromwell  bears  me 
any  ill-will ;  my  opinion  is  they  were  form- 
ing a  plot  to  take  this  vessel ;  I  mean  Crom- 
well and  Spencer. 

"  When  the  commander  told  the  crew  of 
the  plot,  my  mind  went  back  to  things  I 
had  seen  before  Mr.  Spencer  was  confined  ; 
that  made  me  believe  there  was  a  plot. 

(Sworn.)      "  CHARLES  VAN  VELZOR." 

GEORGE    W.    WARNER. 

"  Have  seen  Cromwell  and  Spencer  sit- 
ting together  frequently  ;  have  heard  Mr. 
Spencer  ask  Cromwell  what  kind  of  a 
slaver  this  vessel  would  make,  he  replied, 
he  thought  she  would  make  a  nice  slaver ; 
have  no  doubt  but  that  he  had  joined  Mr. 
Spencer  in  the  project  of  taking  this  vessel ; 
thinks  Cromwell  would  have  taken  this  ves- 
sel to  the  northwest  coast ;  Cromwell  was 
in  a  slaver,  and  taken  a  year  since  at  Cuba  ; 
thinks  Cromwell  would  have  taken  second 
in  command,  and,  very  probably,  after  that 
would  have  taken  command  himself;  Spen- 
cer was  not  intimate  with  Cromwell  during 
the  day ;  have  no  doubt  Mr.  Spencer  meant 
to  make  the  attack  on  the  vessel ;  thinks 
Cromwell  a  desperate  character ;  thinks 
Cromwell  would  have  put  Mr.  Spencer  to 
death  if  he  could  not  make  him  of  service  ; 
thinks  Small  a  desperate  character  ;  Spen- 
cer did  not  enforce  the  orders  lately  on  the 
forecastle  as  other  officers  did  ;  Mr.  Spen- 
cer has  been  intimate  with  the  crew  ;  have 
seen  him  give  cigars  to  Cromwell. 

"  Q.  What  was  the  reason  for  your  saying 
to  Green,  '  The  damned  son  of  a  bitch 
(meaning  Cromwell)  ought  to  be  hung?' 

"A.  Because  I  thought  him  guilty;  Green 
said  he  did  not  believe  that  he  (Spencer) 
had  anything  to  do  with  it ;  I  told  Green  I 
thought  Mr.  Spencer  as  great  a  villain  as 
any  of  them ;  hardly  think  Wilson  was 
concerned ;  thinks  it  very  like  Small  has  a 
hand  into  it ;  is  a  person  should  think  it 
likely  Small  would  have  joined  ;  has  been 
in  a  slaver ;  is  pretty  certain  he  has  heard 


Small  say  he  was  in  a  slaver ;  he  thinks 
Cromwell  deserves  to  be  hung  ;  thinks  he 
is  the  most  desperate  person  in  the  ship  ; 
if  I  had  my  way  of  it  1  would  hang  him. 

"  Believe  that  Mr.  Spencer  had  made  use 
of  Small  and  Cromwell  to  win  over  the 
men  to  his  project,  from  what  Wilson  told 
me  on  the  forecastle ;  that  Mr.  Spencer 
asked  him  one  day  what  was  the  cause  of 
his  shipping  in  the  service  ;  he  said  it  was 
on  account  of  a  small  spree  he  had  on  shore  -t 
Mr.  Spencer  said  he  '  knew  the  person  he 
had  the  difficulty  with  ;'  Wilson  said,  he 
'  must  have  overheard  something,'  Spen- 
cer told  him  '  No,'  that  there  was  '  two  or 
three  on  board,'  and  paused  and  finished  by 
saying  '  never  mind.'  He  believes  Small 
is  engaged  in  this  aflair ;  thinks  there  are 
other  persons  in  the  ship  concerned  ;  can 
not  mention  names  as  I  do  not  know  them. 
"  GEORGE  W.  WARNER,  O.  S." 

M.    A.    GEDNEY,  SEAMAN. 

"  One  evening  while  the  vessel  was 
going  between  Port  Praya  and  Monrovia, 
Mr.  Spencer  and  Cromwell  were  on  the 
starboard  side  forecastle  ;  Mr.  Spencer  was 
conversing  very  low  to  Cromwell ;  could 
not  understand  all  that  he  said,  but  I  heard 
him  (Spencer)  say  to  Cromwell,  '  he 
would  try  that,  and  if  he  succeeded  well 
and  good,  and  if  not,  he'd  burst.'  Know 
that  he  had  reference  to  a  voyage,  and 
spoke  about  a  voyage  to  the  northwest  coast; 
believe  that  Cromwell  was  concerned  in  the 
plot  with  Mr.  Spencer  to  take  this  vessel ;  I 
have  heard  the  boys  say  that  Mr.  Spencer,  for 
an  officer,  was  very  thick  with  Cromwell.  1 
have  never  had  any  difficulty  with  Cromwell, 
Spencer,  or  Small.  Think  Cromwell,  when 
aggravated,  is  a  resolute  and  desperate  man  ; 
Collins  told  him  in  my  hearing  that  he  (Col- 
lins) *  was  once  on  board  a  vessel  where 
there  was  a  keg  of  gold  in  the  hold  for  six 
months,  and  no  one  knew  of  it  but  himself;' 
Cromwell  replied  that  if  he  had  such  a 
chance  he  would  run  off  with  it  to  the 
western  states. 

(Sworn.)    "  M.  A.  GEDNEY,  Seaman." 

"  I  nowbelieve  that  when  he  (Spencer)  told 
Cromwell  that  '  he  would  try  that,  and  if 
he  succeeded,  well  and  good,  and  if  not, 
he'd  burst ;'  that  he  alluded  to  taking  this 
vessel.  This  I  believe  firmly. 

(Sworn.)  "M.  A.  GEDNEY." 


NAVAL  COURT  MARTIAL. 


153 


"  Several  nights  after  the  above  conver- 
sation Spencer  said  he  '  hoped  he  (Crom- 
well) would  not  forget  what  they  were 
talking  about  the  other  night,'  •  Oh,  no,  sir,' 
said  Cromwell  in  reply. 

(Sworn.)  "M.  A.  GEDNEY." 


M.    H.     GARTY. 

"  Believes  Spencer,  Small,  and  Crom- 
well, were  determined  on  taking  this  brig  ; 
he  supposes  to  turn  pirates  or  retake  sla- 
vers ;  on  or  about  the  1 1th  of  Oct.  heard 
Mr.  Spencer  say  'the  brig  could  be  taken 
with  six  men,  that  he  could  take  her  with 
six  men.'  1  told  him  he  could  not  do  it 
with  three  times  six.  Cromwell  told  me 
that  Mr.  Spencer  had  given  him  fifteen  dol- 
lars, and  that  he  was  afraid  to  take  care  of 
it,  and  requested  me  to  take  charge  of  it ;  I 
think  there  are  some  persons  at  large  that 
would  voluntarily  assist  the  prisoners  if 
they  had  an  opportunity  ;  think  if  the  prison- 
ers were  at  large  the  brig  would  certainly 
be  in  great  danger ;  thinks  there  are  per- 
sons adrift  yet  who  would  if  an  opportunity 
offered  rescue  the  prisoners  ;  thinks  the 
vessel  would  be  safer  if  Cromwell,  Spencer, 
and  Small,  were  put  to  death. 

"  Mr.  Spencer  told  me  that  if  he  knew 
\vhere  the  keys  lay  as  well  as  me,  that  he 
would  first  take  the  arms  and  then  secure 
the  captain  and  officers,  and  then  turn  out 
the  crew  and  they  would  see  his  men  in 
arms  and  give  up  immediately,  or  words  to 
that  effect.  About  the  20th  Nov.  he  told 
me  that  he  expected  to  have  a  vessel  of  his 
own  shortly.  Sometime  previous  to  this  1 
heard  him  ask  Cromwell  how  he  would  like 
to  sail  with  him ;  Cromwell  told  him  he 
would  certainly  like  it  well ;  and  Spencer 
said  that  it  might  make  an  alteration  in  him 
(Spencer)  but  that  he  (Cromwell)  might  not 
take  notice  of  it.  Thinks  Cromwell  a  very 
desperate  fellow  ;  I  have  observed  him 
lately  and  have  formed  that  opinion  ;  Mr. 
Spencer  and  him  (Cromwell)  I  have  often 
observed  on  the  forecastle  talking  together ; 
thinks  their  object  in  taking  slavers  would 
be  to  convert  them  to  their  own  use  ;  and 
not  for  the  purpose  of  suppressing  the  slave- 
trade. 

(Sworn.) 


"  M.  H.  GARTY,  Sergt." 


OLIVER  B.  BROWNING. 


"  All  that  Mr.  Spencer  ever  said  to  me 
20 


about  the  matter,  he  asked  me  if  I  had  ever 
been  in  a  Guineaman  ;  I  answered  that  I 
once  shipped  in  the  Havana  in  one,  and  re- 
gretted my  bargain,  and  run  away  before 
she  left  that,  port ;  he  (Mr.  Spencer)  replied, 
'  Oh,  I  forget — 'twas  not  you,  but  Crom- 
well.' This  occurred  the  day  before  Spen- 
cer was  confined,  between  the  hours  of  6 
and  8  in  the  evening. 

"  I  would  not  like  to  be  on  board  the  brig 
if  he  (Cromwell)  was  at  large  ;  I  do  not 
bear  hint  any  ill  will ;  I  do  not  know  that 
he  bears  me  any  ill  will ;  I  do  not  believe 
it  safe  to  have  Cromwell,  Small,  and  Spen- 
cer, on  board  ;  I  believe  that  if  the  men, 
were  at  their  stations  taking  care  of  the 
vessel  in  bad  weather  or  any  other  time,, 
when  they  could  get  a  chance  they  would 
try  to  capture  the  vessel,  if  they  could  get 
a  chance — to  tell  you  '  God  Almighty's* 
truth,  I  believe  that  some  of  the  cooks 
around  the  galley,  I  think  they  are  the  main, 
backers — viz.,  Waltham,  Coustin,  Howard,. 
Gallia ;  1  have  my  suspicions  also  about 
some  of  the  boys — I  think  that  those  men- 
tioned, if  they  could  make  head,  would  re- 
lease the  prisoners  and  take  the  vessel ;  I 
believe  Cromwell,  Small,  and  Spencer, 
ought  to  be  made  way  with  (that  is,  killed) ; 
I  think  she  (the  vessel)  would  then  be  more 
safe ;  that  she  is  in  danger  of  falling  into  their 
hands  while  they  are  on  board ;  have  seen 
Cromwell  and  Mr.  Spencer  frequently  talk- 
ing in  a  secret  way  on  the  forecastle  ;  think 
that  he  (Cromwell)  is  a  man  that  would 
carry  a  project  of  that  kind  into  execution  ;  I 
think  that  a  man  who  would  go  in  a  Guinea- 
man would  go  in  a  piratical  vessel ;  I  think 
they  are  on  a  par. 

(Sworn.)  "  O.  B.  BROWNING." 

THOMAS  DICKINSON. 

"  I  think  that  the  following  persons  still 
at  large  are  concerned  in  it,  viz.,  Kneavals, 
Golderman,  Sullivan,  Hamilton,  Van  Velsor, 
Whitmore,  Garrabrants,  Godfrey  (partly 
concerned  in  it),  and  Waltham,  he  more  so 
than  ever  within  two  or  three  days  ;  thinks 
Mr.  Spencer  was  at  the  head  of  the  plan — 
that  he  started  the  plan  first,  and  Cromwell 
seconded  it,  as  what  I  have  seen  makes 
me  think  so ;  think  if  they  could  get  for- 
ward they  would  be  more  likely  than  ever 
to  take  the  vessel ;  I  saw  Green  drunk 
about  a  fortnight  since,  and  about  the  same 
time  saw  him  with  a  skin  containing  liquor 


154 


PROCEEDINGS  OF  THE 


coming  up  from  the  galley  ;  believes  that 
if  they  had  the  least  chance  in  the  world 
they  would  take  the  vessel  quicker  than 
ever  ;  thinks  those  that  are  at  large,  if  they 
had  the  least  chance,  would  rescue  the 
prisoners  ;  I  think  if  Cromwell,  Small,  and 
Spencer,  were  made  way  with,  it  would  put 
a  stop  to,  and  I  think  by  that  means  the  vessel 
will  be  safe ;  have  not  the  least  doubt  of  the 
guilt  of  the  three  prisoners  last  mentioned. 
(Sworn.)  "  THOMAS  DICKINSON." 

WILLIAM  COLLINS. 

"  Wishes  Cromwell,  Small,  and  Spencer, 
were  out  of  the  ship ;  thinks  she  would  be 
more  safe  ;  thinks  that  Spencer  is  the  lead- 
er of  the  gang  ;  thinks  that  Cromwell  is 
engaged  in  it ;  heard  him  (Cromwell)  say 
he  had  been  in  a  slaver ;  heard  him  tell  the 
doctor  this. 

(Sworn.)  "  WILLIAM  COLLINS." 

ANDREW  ANDERSON". 

"  I  am  not  in  Mr.  Spencer's  watch  ;  have 
seen  Mr.  Spencer  and  Cromwell  often  speak- 
ing together  on  the  forecastle  in  a  private 
way,  never  took  much  notice  ;  I  think  it's 
plain  proof  that  they  were  plotting  to  take  this 
vessel  out  of  the  hands  of  her  officers  j  from 
the  first  night  Mr.  Spencer  was  confined, 
and  from  what  I  heard  from  my  shipmates, 
I  suspected  they  were  plotting  to  take  the 
vessel :  Mr.  Spencer  must  be  the  head, 
Cromwell  the  next — thinks  Small  was  not 
on  good  terms  with  Cromwell ;  I  think  they 
are  safe  from  here  to  St.  Thomas,  but  from 
there  home  I  think  there  is  great  danger, 
on  account  of  the  bad  weather  on  the  coast 
and  squalls  ;  there  will  only  be  a  few  of  us, 
and  we  will  have  to  be  together  to  take 
care  of  the  vessel ;  thinks  there  is  not  much 
danger  now,  because  two  men  now  can  do 
as  much  work  as  ten  on  the  coast  of  the 
United  States  in  the  winter,  and  the  boys 
will  be  of  no  use  to  us. 

"  I  don't  know  about  the  niggers  at  the 
galley — I  don't  like  them — Cromwell  could 
get  anything  at  the  galley — they  appeared 
to  like  Cromwell  there,  he  would  very 
often  take  his  pot  and  get  coffee  there ;  he 
has  given  me  some — I  am  a  messmate  of 
his. 

his 

(Sworn.)      "  ANDREW  x  ANDERSON." 
mark 


CHARLES  ROGERS. 

"  Mr.  Spencer  never  spoke  to  me  about 
any  such  transaction  at  all ;  the  day  before 
we  sailed  from  N.York  I  saw  Mr.  Spencer 
give  Small  some  money  ;  Mr.  Spencer  said 
'twas  likely  we  would  anchor  off  the  bat- 
tery, and  there  would  be  some  bomb-boats 
alongside  and  he  could  buy  something;  have 
seen  them  very  often  speaking  together,  but 
do  not  know  what  it  was  about.  I  believe 
that  Spencer  gave  Cromwell  $15  on  the 
passage  to  Madeira — Cromwell  showed  it 
to  me  and  said  that  Mr.  Spencer  had  given 
it  to  him.  If  we  get  into  hard  weather,  I 
think  it  will  be  hard  to  look  out  for  all  the 
prisoners  ;  I  believe  if  there  are  any  at 
large  concerned  in  the  plot,  that  they  could 
of  a  dark  night  rescue  the  prisoners.  If 
there  was  a  plot  to  take  the  vessel,  it  would 
not  be  safe  to  go  on  our  coast  in  cold  or  bad 
weather  with  the  prisoners — I  think  they 
would  rise  and  take  the  vessel ;  I  think  if 
Cromwell,  Small,  and  Spencer,  were  dis- 
posed of  (that  is,  killed),  our  lives  would 
be  much  safer. 

"  Cromwell  and  Small  understand  navi- 
gation— these  two  are  the  only  ones  among 
the  prisoners  capable  of  taking  charge  of 
the  vessel,  I  think. 

(Sworn.)  "  CHARLES  ROGERS." 

CHARLES    STEWART. 

"  I  am  in  the  same*  watch  with  Mr.  Spen- 
cer (viz.,  starboard  watch)  ;  have  seen 
Cromwell  and  Spencer  talking  together 
often — talking  low.  I  don't  think  the  ves- 
sel is  safe  with  these  prisoners  on  board ; 
this  is  my  deliberate  opinion,  from  what 
I've  heard  King,  the  gunner's  mate,  say, 
(that  is)  that  he  had  heard  the  boys  say 
that  there  were  spies  about — I  think  the 
prisoners  have  friends  on  board  who  would 
release  them  if  they  got  a  chance.  I  can't 
give  any  opinion  as  to  his  (Cromwell's) 
character — I  have  seen  Cromwell  at  the 
galley  getting  a  cup  of  coffee  now  and  then, 
his 

(Sworn.)        "  CHARLES  X  STEWART." 
mark 

HENRY  KING. 

"  List  of  men  which  he  suspects  of  be- 
ing engaged  in  this  matter  now  : — Golder- 
man,  Sullivan,  and  Waltharn  ;  believes  that 
Cromwell  was  at  the  head  of  them  ;  Mr. 
Spencer  and  Cromwell  were  engaged,  most 


NAVAL  COURT  MARTIAL. 


155 


every  first  watch,  taking  stars  ;  believes 
that  Small  is  engaged  in  it,  pretty  deeply 
in  it ;  have  seen  Mr.  Spencer  talking  with 
the  above  men  frequently  ;  believes  the  ves- 
sel was  in  danger  of  being  taken  by  them  ; 
thinks  Cromwell  the  head  man  ;  thinks  they 
have  been  engaged  in  it  ever  since  we  left 
New  York  ;  thinks  if  they  could  get  adrift 
there  would  be  danger  of  the  vessel's  being 
taken  ;  thinks  Spencer,  Small,  Cromwell, 
and  Wilson,  were  the  leaders ;  thinks  if 
Golderman  arid  Sullivan  could  get  a  party 
among  the  crew  now,  that  they  would  re- 
lease the  prisoners  and  take  the  vessel,  and 
that  they  are  not  to  be  trusted. 

his 
(Sworn.)  «  H.  x  KING, 

mark       Gun-mate."" 

PETER    TYSON. 

"  Night  before  Mr.  Spencer  was  put  in 
Irons,  M'Kinley  and  Wilson  came  aft,  while 
I  was  lying  down  between  4  arid  5  gun  ; 
they  appeared  to  have  been  conversing  be- 
fore ;  Wilson  said  to  M'Kinley,  '  Come 
here,  I  want  to  tell  you  ;'  M'Kinley  then 
said,  '  He  told  me  we  have  got,  spies  on  us, 
and  had  better  be  careful ;'  Wilson  said,  '  I 
defy  any  man  to  find  out  my  business ;  I 
know  my  business  ;  I  have  been  in  too 
many  scrapes  ;  he  knows  what  I  am,  and 
that  I  never  look  to  what  is  to  come  after- 
ward ;  I  don't  fear  nothing,  and  go  right 
ahead.'  [  did  not  know  what  they  alluded 
to,  but  Wilson  said,  '  I  would  not  mind 
joining  them  ;'  M'Kinley  said,  '  I  don't 
know,  I  would  rather  go  in  a  regular  sla- 
ving expedition,  for  there  you  have  $35  a 
month,  and  prize-money ;  when  we  get  to 
St.  Thomas  we  will  be  fitted  out.'  Wilson 
said,  '  He  knew  that  I  did  not  come  on 
board  this  vessel  willingly.'  I  then  pre- 
tended to  wake  up,  and  asked  M'K.  what 
that  was  about  slavers.  He  appeared  star- 
tled—he said,  '  I  was  talking  of  a  slaver 
that  went  from  St.  Thomas  fitted  out  in  reg- 
ular man-of-war  style,  and  was  gone  three 
or  four  months,  and  returned,  and  had  taken 
three  vessels  ;'  he  said  they  were  regular 
pirates  in  a  measure.  I  asked  him  (M'K.) 
if  he  would  like  to  go  in  a  slaver ;  he  said 
he  would  not  mind  it  much — when  we  got 
to  St.  Thomas  he  would  run,  if  he  got  a 
chance  to  join  a  slaver  ;  I  told  him  I  had 
heard  of  slavers  being  fitted  out  at  St. 
Thomas.  (Sworn.)  "  PETER  TYSON." 


U.  S.  BRIG  SOMERS,      > 
"  Nov.  26,  1842.  j 


"  On  the  night  of  the  25th  inst.,  in  the 
2d  dog-watch,  I  was  standing  by  the  bitts  ; 
Acting  Midshipman  Philip  Spencer  came 
forward,  and  stated  that  he  had  something 
of  importance  to  communicate  to  me,  and 
requested  me  to  get  on  the  top  of  the  booms 
with  him ;  I  did  so ;  when  the  following 
conversation  occurred — "  Are  you  afraid  of 
death  ?  Do  you  fear  a  dead  man  ?  and 
dare  you  kill  a  person  ?"  To  the  first,  I 
replied  that  I  was  not  afraid  of  death,  but 
was  not  particularly  anxious  to  die  quite 
yet ;  and  secondly,  that  I  had  no  reason 
to  give  why  I  should  fear  a  dead  per- 
son;  and  thirdly,  that  if  a  person  should 
insult  and  abuse  me  sufficiently,  I  thought 
I  could  muster  courage  sufficient  to  kill 
him. 

"  He  then  said  he  had  something  to  com- 
municate, which  would  not  only  place  his 
life  in  jeopardy,  but  a  number  of  others 
concerned.  He  asked  me  if  I  would  keep 
secret  all  he  communicated ;  I  promised 
him  I  would  do  so — whereupon  he  swore 
me.  He  then  informed  me  that  he  was 
leagued  with  about  twenty  of  the  brig's 
company,  to  take  her,  murder  all  her  offi- 
cers, arid  commence  pirating  on  the  high 
seas.  He  said  he  had  the  plan  and  stations 
of  the  men  all  arranged  in  secret  writing, 
and  that  it  was  to  go  into  force  when  he 
had  the  mid-watch ;  some  of  those  con- 
cerned were  to  get  into  a  sham-fight,  and 
he  was  to  bring  them  up  to  the  mast,  and 
call  the  officer  of  the  deck  (Mr.  Rogers) ; 
whereupon  they  were  to  seize  him,  and 
throw  him  overboard ;  this  done,  they  were 
to  proceed  to  the  cabin,  murder  the  com- 
mander, while  some  of  his  men  were  to  be 
stationed  at  the  steerage  ladder  and  birth- 
deck  door,  so  that  in  case  any  noise  should 
be  made  in  murdering  the  commander,  and 
any  of  the  wardroom  or  steerage  officers 
should  come  to  his  rescue,  they  were  to  cut 
them  off  as  they  came  up. 

"In  case  there  was  no  noise  made,  Mr 
Spencer  was  to  go  down  in  the  wardroom 
(after  having  murdered  the  commander),  and 
there,  with  his  own  hands,  murder  the 
wardroom  officers  while  they  were  asleep. 

"  Meantime  the  arm-chest,  the  keys  of 
which  he  said  he  could  put  his  hands  on  at 
any  moment,  was  to  be  opened,  and  arms 
and  ammunition  given  to  the  mutineers.  Af- 


156 


PROCEEDINGS   OF  THE 


ter  having  obtained  possession  of  the  brig, 
he  was  to  select  from  among  the  crew  such 
as  would  suit  his  purpose,  and  the  remain- 
der were  to  be  thrown  overboard. 

"  This  accomplished,  they  were  to  throw 
the  launch  overboard,  with  all  the  spare 
spars  and  sails,  so  as  not  to  have  the  decks 
lumbered  up,  as  they  could  supply  them- 
selves with  spars  and  sails  from  the  vessels 
they  took,  in  case  they  should  stand  in  need 
of  any.  The  brig  was  to  proceed  to  Cape 
St.  Antonio,  or  the  Isle  of  Pines,  one  of 
these  places,  and  there  take  on  board  one 
who  was  familiar  with  their  intended  busi- 
ness, whom  one  of  the  conspirators  was  per- 
fectly acquainted  with,  and  who  was  ready 
and  willing  to  join  in  the  expedition.  Du- 
ring this  conversation  he  called  up  one  of 
the  seamen,  Elisha  H.  Small,  and  com- 
menced talking  to  him  about  something  that 
I  could  not  exactly  understand.  Small 
looked  astonished  that  he  should  be  so  open 
with  me — whereupon  Mr.  Spencer  remark- 
ed to  him  that  he  need  not  be  under  any 
apprehensions  of  fear  from  me,  for  I  was  one 
of  them  ;  upon  this  Small  remarked  that  he 
was  very  glad.  Here  Small  was  called 
away  to  execute  some  command,  and  Mr. 
Spencer  said  to  him  that  he  wished  to  have 
some  further  conversation  with  him  in  the 
mid-watch,  and  in  the  meantime  he  wished 
him  to  see  that  fore  top-man. 

"  Mr.  Spencer  then  went  on  to  state  that 
the  commander  had  a  large  amount  of  mon- 
ey on  board,  with  that  and  what  the  purser 
had,  would  make  a  pretty  little  sum.  He 
then  asked  me  if  I  would  become  one  of 
their  number  ;  I  did  not  tell  him  whether  I 
would,  or  would  not,  but  rather  leaned  on 
his  side,  in  order  to  obtain  further  intelli- 
gence of  their  movements.  He  told  me  he 
had  the  thing  all  arranged  in  secret  writing, 
enclosed  in  his  neck-handkerchief,  which  he 
would  show  me  at  some  future  period. 
Hereupon  my  business  called  me  away ; 
Mr.  Spencer  followed  me  as  far  aft  as  the 
gangway,  saying,  that  if  I  breathed  a  sylla- 
ble of  what  he  had  communicated,  my  life 
would  not  be  worth  a  straw;  as  I  would 
certainly  be  murdered,  if  not  by  him,  by 
some  of  those  concerned — escape  was  im- 
possible. If  you  will  agree  to  become  one 
of  us,  I  will  make  you  third  officer  on 
board  ;  I  told  him  I  would  talk  with  him  to- 
morrow upon  the  subject. 

"  Here  we  parted  for  the  night ;  I  imme- 


diately took  the  first  opportunity  to  make 
known  to  the  commander  his  intentions. 
At  first  I  attempted  to  inform  the  1st  lieu- 
tenant, Mr.  Gansevoort,  and  went  aft  to  do 
so,  but  had  to  pass  Mr.  Spencer  to  get  into 
the  wardroom,  which  I  dared  not  do,  for 
fear  of  awakening  Spencer's  suspicions,  as 
he  was  still  awake  in  his  hammock,  directly 
in  front  of  the  wardroom  door.  The  first 
opportunity  I  could  get  to  make  the  subject 
known,  was  through  Purser  Heiskill,  and 
requested  he  would  let  Mr.  Gansevoort 
know  immediately.  Mr.  Gansevoort,  at  the 
time  I  spoke  to  the  purser,  was  on  deck, 
and  as  I  was  fearful  of  awakening  suspicions 
among  those  concerned,  if  I  was  seen  talk- 
ing with  him,  as  I  knew  not  who  were  con- 
cerned. However,  I  went  on  deck,  and 
told  Mr.  Gansevoort  that  Mr.  Heiskill  wish- 
ed to  speak  with  him  in  the  wardroom;  he 
immediately  came  down,  and  the  conspiracy 
was  communicated  to  him  by  Purser  Heis- 
kill. 

"I  have  frequently  heard  Mr.  Spencer 
speak  disrespectfully  of  Commander  Mac- 
|  kenzie,  calling  him  a  damned  old  humbug, 
and  some  days  since  I  noticed  Mr.  Spencer 
was  very  negligent  in  repeating  orders  that 
were  given  to  him  by  the  officer  of  the 
deck.  Commander  Mackenzie  noticed  this, 
and  sent  for  Mr.  Spencer  ;  he  came  back 
muttering  curses  against  the  commander, 
and  said  that  it  would  be  a  pleasing  task  to 
him,  on  some  of  these  dark  nights,  to  chuck 
him  (the  commander)  overboard  when  he 
was  sitting  on  the  round-house.  This  was 
said  in  the  presence  of  a  number  of  the 
crew,  on  the  forecastle,  and  seemed  to  be  a 
very  amusing  remark  to  them.  I  have  fre- 
quently heard  Mr.  Spencer  express  his  dis- 
like to  Commander  Mackenzie  in  this  or  a 
similar  manner.  At  Cape  Mesurado,  when 
going  on  shore  in  one  of  the  brig's  boats, 
Mr.  Spencer  was  not  in  proper  uniform ; 
the  commander  desired  him  to  dress  in  uni- 
form, arid  go  as  officer  of  the  boat ;  he,  how- 
ever, got  in  the  boat,  and  pushed  off  from 
the  brig;  the  commander  hailed  the  boat, 
and  asked  if  he  had  the  ensign  on  board. 
Spencer  sung  out  that  we  had  not,  and  then 
muttered,  '  Go  to  hell,  you  damned  old  hum- 
bug!' (this  the  crew  heard)  'I  won't  come 
back  for  it,'  at  the  same  time  saying  that  he 
wished  the  brig  and  all  in  her  were  in  hell. 
At  the  time  Mr.  Spencer  had  the  conversa- 
tion with  me  relative  to  the  seizure  of  the 


NAVAL  COURT  MARTIAL. 


157 


brig,  the  man  Small  was  called  np  by  Mr. 
Spencer,  who  asked  him  a  question,  and 
desired  him  to  answer  it  in  Spanish,  the 
import  of  which  I  did  not  understand.  Mr. 
Spencer  spoke  rather  loud  during  the  con- 
versation once  or  twice,  and  Small  desired 
him  to  be  more  careful,  as  there  were  a 
number  of  little  pitchers  around,  who  had 
great  ears.  During  our  passage  from  Port 
Praya  to  Mesurado,  the  berth-deck  was  so 
warm,  that  I  used  to  go  on  deck  during  the 
night  frequently,  and  sit  for  hours.  The 
most  of  the  time  when  Mr.  Spencer  had  a 
watch  on  deck,  I  would  find  him  engaged 
in  conversation  with  the  men,  particularly 
Cromwell  and  Small,  the  three  being  often 
together.  On  one  occasion,  I  found  Mr. 
Spencer  asleep  in  his  watch. 

"JAMES  W.WALES." 

Q.  Are  those  minutes  made  with  a  pen- 
cil ? 

A.  Yes,  sir. 

Q.  Why  was  this,  in  so  grave  a  matter  ? 

A.  I  do  not  know  that  1  can  give  any 
particular  reason — there  were  no  lawyers 
there. 

Q.  Were  any  corrections  made  in  that 
testimony  afterward  ? 

A.  There  were. 

Q.   Please  to  state  them. 

A.  One  in  Warner's  statement ;  I  had 
written  part  of  it  down,  and  another  question 
being  asked  of  Warner,  by  one  of  the  offi- 
cers, I  lost  the  thread  of  what  he  had  stated, 
after  getting  down  a  part  of  it ;  I  afterward 
asked  him  what  he  said,  and  then  wrote  it 
down  ;  I  wish  to  show  the  erasures  and 
corrections,  that  all  may  be  clear ;  I  think 
I  can  write  as  distinctly  with  a  pencil  as 
with  a  pen  ;  there  are  several  small  altera- 
tions, but  none  were  made  without  the  ap- 
probation, and  all  in  the  presence  of  the 
witness,  and  not  without  being  read  over  to 
him  more  than  once. 

Q.  Was  any  portion  of  this  testimony  re- 
vised or  corrected  after  the  execution,  by 
the  witnesses,  or  any  of  them  ? 

A.  I  am  not  positive  ;  some  of  these 
corrections  were  made  after  the  examin- 
ation. 

Q.  Whom  did  you  examine  on  the  1st  of 
December  ? 

A.  I  can  not  remember ;  the  statements 
were  on  loose  sheets,  and  were  not  sewed 
together  until  after  by  me. 


Q.  Can't  you  remember  how  many  were 
examined  on  the  1st  of  December  ? 
A.  No,  sir,  I  can't. 

Q.  When  did  you  come  to  the  conclusion 
that  the  execution  was  necessary  ? 
A.  On  December  1st. 

Q.  On  what  ground  ? 

A.  I  believed  them  guilty,  from  the  testi- 
mony taken  on  November  30th  and  Decem- 
ber 1st,  and  believing  that  a  great  many  of 
the  crew  were  also  guilty,  and  sympathizing 
with  the  seven  prisoners  confined  on  the 
quarter-deck  ;  the  strength  of  the  officers 
had  almost  left  them,  and  I  considered  we 
were  in  no  condition  to  contend  with  a  body 
of  mutineers. 

Q.  Where  was  Commander  Mackenzie 
when  you  gave  him  the  minutes  ? 

A,  I  did  not  give  them  to  him  ;  I  read 
them  to  him  ;  he  was  in  his  cabin. 

Q.  Did  he  then  show  you  the  letter  of 
the  officers,  or  speak  of  it  to  you  ? 

A.  No,  sir. 

Q.  What  was  Commander  Mackenzie 
engaged  about  when  you  first  went  into  the 
cabin  then  ? 

A.  I  went  down  first,  I  think,  or  followed 
him  down  ;  I  am  not  positive. 

Q.  During  or  at  the  close  of  the  testi- 
mony, on  the  30th,  did  any  of  the  officers 
express  the  opinion  that  these  men  should 
be  disposed  of  ? 

A.  I  do  not  remember ;  I  think  it  is  likely 
they  did. 

Q.  Was  not  the  conversation  on  these 
points  unreserved,  and  at  times  in  the  pres- 
ence of  witnesses,  on  the  30th  ? 

A.  There  might  have  been  ;  I  don't  re- 
member. 

Q.  Did  the  officers  pass  any  cautions  to 
each  other,  not  to  signify  their  opinions  in 
the  hearing  of  witnesses  ? 

A.  Not  that  I  remember. 

Q.  Was  any  proposition  made  to  apprize 
the  three  executed  persons  of  a  pending  in- 
vestigation, and  to  offer  them  assistance  and 
counsel,  to  see  that  nothing  but  truth  should 
be  against  them  ? 

A.  Not  that  I  am  aware. 

Q.  Had  not  Mr.  Spencer  been  frequently 
invited  into  the  wardroom,  by  Mr.  Ganse- 
voort,  before  this  ? 

A.  I  can  not  say  frequently  ;  he  had  dined 
there  only  once,  I  think  ;  I  can  not  say  by 
whose  invitation. 


158 


PROCEEDINGS  OF  THE 


Q.  Was  he  in  the  habit  of  conversing  in 
the  wardroom  with  Dr.  Leacock  ? 

A.  He  would  meet  him  occasionally  ;  I 
don't  know  that  he  was  in  the  habit. 

Q.  Were  not  any  of  the  other  steerage 
officers  more  frequently  than  once  invited 
to  dine  in  the  wardroom  ? 

A.  It  is  possible,  but  I  do  not  remember. 

Q.  Have  you  known  Mr.  Spencer  to 
make  Mr.  Gansevoort  a  present  ?  If  so, 
when  and  what  ? 

A.  Yes,  sir ;  he  gave  him  a  pipe  ;  I 
think  it  was  shortly  after  we  left  Monrovia. 

Q.  Was  it  not  about  two  weeks  before 
the  arrest  ? 

A.  I  can  not  say. 

Q.  Was  it  a  handsome  article  ? 

A.  I  had  no  fault  to  find  of  it ;  it  was 
made  of  ivory,  out  of  a  whale's  tooth,  by  the 
carpenter's  mate. 

Q.  Did  you  ever  hear  Mr.  Spencer  ex- 
press his  disrelish  of  the  navy,  and  his  in- 
tention to  leave  it  ? 

A.  I  am  not  positive  ;  I  rather  think  I 
have  heard  him  say  something  of  the  kind. 

Q.  Were  the  young  officers  shy  of  an  in- 
timacy with  Mr.  Spencer? 

A,  I  can  not  answer  as  to  that. 

Q.  Did  a  single  one  of  his  messmates 
take  leave  of  him  on  the  day  of  execution, 
except  Midshipman  Thompson  ? 

A.  I  was  not  in  a  situation  to  see. 

Q.  Do  you  know,  or  have  you  heard  from 
the  commander,  that  the  young  officers  were 
cautioned  against  intimacy  with  Mr.  Spen- 
cer 1 

A.  I  do  not. 

Q.  Had  orders  of  any  kind  been  issued 
for  preparation  for  the  execution,  before  you 
read  the  minutes  to  Commander  Macken- 
zie ? 

A,  Not  that  I  am  aware  of. 

Q.  Was  each  witness  asked,  before  the 
council,  if  the  persons  should  be  put  to 
death  ? 

A.  The  general  question  was,  whether 
they  thought  the  vessel  would  not  be  safer 
with  those  persons  made  way  with — that  is, 
killed  ;  to  the  best  of  my  belief,  these  were 
the  words. 

Q.  W£s  it  told  the  witnesses  how  soon 
this  making  away  with  was  proposed  for 
execution  1 

A.  I  think  not. 

Q.  Did  any  of  them  inquire  when  this 
putting  to  death  was  to  take  place  ? 


A.  No,  sir. 

Q.  Had  you  ascertained,  from  their  ob- 
servations, the  opinion  of  your  associates  in 
the  council,  on  the  evening  of  the  30th  ? 

A.  I  believe  1  knew  the  opinion  of  one 
or  two,  as  to  the  guilt  of  the  prisoners. 

Q.  Had  you  any  doubt,  on  the  evening  of 
the  30th,  that  on  the  next  day  they  would 
be  executed  ? 

A.  I  don't  know  that  the  thought  entered 
my  mind. 

Q.  Do  you  mean,  by  your  last  answer, 
that  the  thought  of  this  execution  had  not 
entered  your  mind  on  the  evening  of  the 
30th? 

A.  I  don't  know  that  it  had;  it  might 
have  done  so,  but  I  don't  remember. 

Q.  Had  you  not  been  consulted,  on  the 
29th  and  30th,  by  Lieutenant  Gansevoort, 
or  other  of  the  officers,  as  to  putting  these 
people  out  of  the  way  ? 

A.  Not  that  I  remember. 

Q.  Was  it  said,  by  any  of  the  officers, 
that  the  thought  of  taking  those  prisoners  to 
a  foreign  port  was  not  to  be  thought  of,  as 
it  would  be  disgraceful  to  the  flag,  or  any- 
thing of  that  kind  ? 

A.  I  believe  I  did  hear  something  of  the 
kind. 

Q.  From  whom  ? 

A.  I  think  from  Mr.  M.  C.  Perry. 

Q.  How  came  he  to  make  such  a  re- 
mark ? 

A.  I  can  not  tell ;  the  possibility  of  taking 
the  prisoners  into  port  was  discussed  ;  the 
opinion  was  given  that  it  was  impossible, 
and  at  the  same  time  I  heard  this  remark. 

Q.  Did  Lieutenant  Gansevoort  make 
known  Commander  Mackenzie's  sentiment 
as  to  the  matter  of  seeking  protection  being 
disgraceful  ? 

A.  No,  sir,  not  that  I  know  of. 

Q.  Was  it  said  at  all  that,  if  taken  to  the 
United  States,  they  would  escape  punish- 
ment ? 

A.  Not  to  my  knowledge,  or  in  my  hear- 
ing. 

Q.  Did  you  observe  Mr.  Spencer,  ten  or 
fifteen  minutes  before  his  arrest  ? 

A.  I  was  not  on  deck. 

Q.  Did  you  not  know  that  he  was  to  be 
arrested  ? 

A.  I  don't  recollect  that  I  did  ;  it  is  pos- 
sible. 

Q.  Had  you  not  been,  during  the  day, 
the  channel  of  communication  between 


NAVAL  COURT  MARTIAL. 


150 


Wales  and  Mr.  Gansevoort  and  the  com- 
mander ? 

A.  I  had  between  Mr.  Wales  and  Mr. 
Gansevoort,  and  I  presume  Mr.  Gansevoort 
mentioned  everything  to  the  commander. 

Q.  Had  not  Mr.  Gansevoort  told  you 
that  Mr.  Spencer  was  to  be  arrested  at 
evening  quarters  ? 

A.  No,  sir  ;  I  have  no  recollection  of  it. 

Q.  Mr.  Heiskill,  what  was  the  state  of 
the  brig  as  to  silence  at  the  time  Mr.  Spen- 
cer was  called  out  from  among  the  officers, 
and  while  he  was  being  ironed  ? 

A.  I  don't  recollect  of  any  particular 
noise ;  I  was  called  up  from  the  wardroom, 
with  the  doctor,  just  before  Mr.  Spencer's 
arrest. 

Q.  Was  not  this  call  from  the  wardroom 
notice  of  something  unusual  ? 

A.  Yes,  sir ;  my  station  was  in  the  ward- 
room. 

Q.  With  your  attention  warned  by  your 
confidential  duties  of  the  day,  and  this  unu- 
sual summons,  tell  what  passed  between  the 
commander  and  Mr.  Spencer. 

A.  I  saw  the  commander  walk  in  front 
of  Mr.  Spencer  within  a  few  feet  of  me  ;  I 
heard  the  commander  say  to  him,  "  I  un- 
derstand you  aspire  to  the  command  of  this 
vessel ;  I  do  not  know  how  you  are  to  ob- 
tain it,  unless  by  walking  over  my  dead 
body  and  those  of  my  officers."  He  then 
spoke  of  the  conversation  with  Mr.  Wales  ; 
he  (Mr.  Spencer)  admitted  what  had  been 
said  to  him,  but  that  it  had  been  in  joke. 

Q.  You  then  state,  that  before  Mr.  Spen- 
cer made  a  reply,  the  commander  had  spo- 
ken of  the  conversation  with  Wales  then  ? 

A.  No,  sir  ;  I  do  not  state  that  the  whole 
of  that  was  said  by  the  commander  before 
Mr.  Spencer  made  a  reply. 

Q.  Was  any  answer  made  by  Mr.  Spen- 
cer before  Commander  Mackenzie  spoke  to 
him  of  the  conversation  with  Wales  ? 

A.  That  answer  was  made  to  him,  but 
whether  before  or  after,  I  do  not  pretend  to 
say. 

Q.  Were  you  not,  within  two  or  three 
feet  at  the  time  of  this  conversation  ? 

A.  Yes,  sir;  within  two,  three,  or  four  feet. 

Q.  Have  you  given  all  Mr.  Spencer's 
conversation  ? 

A.  As  far  as  I  remember. 

Q.  Were  you  by  when  Small  was  called 
aft? 

A.  No,  sir. 


Q.  Where  were  you  ? 

A.  Tn  the  wardroom. 

Q.  Were  you  by  when  Wales  was  con- 
fronted with  Mr.  Spencer  ? 

A.  Yes,  when  he  was  called  on  the 
quarter-deck. 

Q.   What  conversation  then  passed  ? 

A.  I  do  not  know  that  I  heard  what  was 
said ;  the  object  was  for  him  to  state  as  to 
his  conversation  with  Mr.  Spencer  ;  I  have 
no  recollection  of  hearing  what  was  said. 

Q.  Did  you  hear  Mr.  Spencer  then  state 
that  his  talk  on  the  preceding  evening  was 
his  first  on  such  a  subject,  or  did  he  speak 
of  the  whole  thing  as  a  thoughtless  act  ? 

A.  Nothing  of  the  kind  said,  that  I 
heard. 

Q.  Did  you  hear  the  commander  say  he 
thought  Mr.  Spencer  half  crazy,  or  child- 
ish ? 

A.  No,  sir. 

Q.  Did  you  see  Mr.  Rogers  go  to  call 
Small  from  the  berth-deck  ? 

A.  No,  sir  ;  I  was  in  the  wardroom. 

Q.  Why  did  you  go  to  the  wardroom  ? 

A.  I  went  to  my  station  in  the  wardroom, 
at  the  magazine. 

Q.  That  was  your  appropriate  station  at 
evening  quarters  ? 

A.  Yes,  sir. 

Q.  Was  you  present  at  the  opening  of 
Mr.  Spencer's  locker  on  the  26th? 

A.  No,  sir. 

Q.  Did  you  see  Lieut.  Gansevoort  give 
Garty  the  key  of  the  chest  the  irons  were 
kept  in  ? 

A.  Not  that  I  remember. 

Q.  Did  you  hear  any  conversation  be- 
tween Mr.  Gansevoort  and  Garty  the  even- 
ing of  the  26th  ? 

A.  Not  that  I  remember. 

Q.  How  did  you  dispose  of  yourself  after 
the  arrest  on  that  evening  ? 

A.  I  can  not  remember. 

Q.  From  the  time  of  the  arrest  to  the 
execution,  had  you  any  conversation  with 
the  prisoners  ? 

A.  No,  sir. 

Q.  Did  you  ever  hear  Small  charged 
with  having  carried  away  the  mast  ? 

A.  No,  sir  ;  not  to  his  face. 

Q.  Before  the  execution,  did  you  ever 
hear  about  Wilson  and  the  handspikes  ? 

A.  I  think  not. 

Q.  Did  you  not  talk  with  the  officers  as 
to  every  suspicious  indication  ? 


160 


PROCEEDINGS  OF  THE 


A.  I  presume  so. 

Q.  Can  you  tell  when  %you  first  heard  of 
this  story  about  the  handspike  and  heaver 
in  the  launch  ? 

A.  No,  sir;  I  can  not  fix  a  time  ;  I  ex- 
pect I  heard  it  before  our  arrival  here. 

Q.  If  King,  who  is  the  witness  as  to  this 
matter,  as  to  the  handspike  in  the  launch, 
were  to  tell  you  that  he  never  mentioned  it 
until  the  arrival  of  the  brig  here,  would  you 
still  presume  you  had  heard  it  before  ? 

A.  I  don't  pretend  to  say  at  what  time  I 
did  hear  it ;  I  can  not  fix  any  time. 

Q.  Did  Mr.  Spencer  write  to  any  of  his 
friends  at  home,  or  ask  Commander  Mac- 
kenzie to  make  a  memorandum  for  him  1 
have  you  heard  Captain  Mackenzie  say 
anything  as  to  this  ? 

A.  I  do  not  know  that  he  made  a  request 
of  that  kind  ;  I  saw  the  commander  writing 
on  the  arm-chest  just  before  Mr.  Spencer's 
execution  ;  I  kept  a  little  way  off,  because 
I  thought  it  was  something  private  that  Mr. 
Spencer  did  not  wish  me  to  hear  ;  I  do  not 
remember  of  having  ever  spoken  to  the 
commander,  or  he  to  me,  about  that  wri- 
ting. 

Q.  Did  you  soon  after  see  that  memo- 
randum ? 

A.  No,  sir. 

Q.  How  long  was  Captain  Mackenzie 
then  engaged  in  writing  1 

A.  Perhaps  fifteen  or  twenty  minutes. 

Q.  Did  you  hear  any  public  annuncia- 
tion by  Captain  Mackenzie  of  his  intention 
to  take  the  executed  persons  to  the  United 
States  on  the  morning  Waltham  was  flog- 
ged ? 

A.  I  don't  recollect. 

Q.  When  the  dead  bodies  were  at  the 
yardarm,  did  you  hear  Commander  Mac- 
kenzie tell  the  crew  (pointing  to  Mr.  Spen- 
cer), that  "  Commodore  Perry  had  not  taken 
the  responsibility  of  removing  that  young 
man  from  the  brig,  but  he  had  of  hanging 
him,"  or  words  to  that  effect,  on  the  Sunday 
after  the  execution  ? 

A.  I  have  no  remembrance  of  it. 

Q.  What  was  the  effect  of  the  execution 
on  the  crew  ? 

A.  I  do  not  know  that  I  can  express  an 
opinion  as  to  that ;  my  duties  did  not  throw 
me  much  in  contact  with  the  crew.  In  my 
own  mind  it  removed  the  fear  of  a  rescue, 
knowing  these  three  persons  were  the  ring- 
leaders in  the  plot. 


Q.  Am  I  to  conclude  that,  with  your  lit- 
tle intercourse  with  the  crew,  you  saw  but 
little  change  in  the  men? 

.A.  However  great  the  change,  from  my 
little  intercourse  with  the  crew,  I  might  not 
have  observed  it. 

Q.  Mr.  Heiskill,  before  the  arrest,  were 
not  the  officers  proud  of  their  ship  arid 
crew  ? 

A.  I  don't  know  that  they  were. 

Q.  Did  you  hear  any  complaint  of  want 
of  discipline  before  the  arrest  ? 

A.  I  don't  recollect  of  hearing  any. 

Q.  Can  you  tell  me  where  the  knife  of 
Wilson,  or  dirk,  came  from  ? 

A.  M'Kinley  was  my  cot-boy  ;  he  was 
ashore  twice  in  the  cutters,  and  saw  a  dirk 
there,  and  wished  me  to  pay  for  it,  or  to 
give  him  the  money  to  pay  for  it ;  that  knife 
was  bought  by  some  of  the  crew  ;  he  came 
ashore  again,  and  I  paid  for  the  other  knife  ; 
I  should  not  know  that  knife,  if  I  saw  it 
again. 

Q.  Did  you  not  regard  it  at  the  time  as 
a  present  to  a  serviceable  boy  you  were 
fond  of? 

A.  Yes,  sir  ;  I  do  not  know  that  I  was 
particularly  fond  of  him. 

Q.  Did  M'Kinley  wait  or  do  service  for 
the  gentlemen  in  the  wardroom  ? 

A.  At  one  time  he  was  the  wardroom 
boy  ;  occasionally  he  would  come  in  to 
make  the  cots  up,  after  we  got  another  boy. 

Q.  Was  he  not  regarded  as  a  good  boy? 

A.  He  was ;  I  regarded  him  as  atten- 
tive. 

Q.  Did  you  hear  a  conversation  between 
him  and  Mr.  Gansevoort,  when  leave  of 
absence  for  him  when  you  got  home  was 
talked  of? 

A.  I  think  I  did  ;  Mr.  Gansevoort  asked 
him  if  he  wanted  some  article  of  clothing  ; 
he  said  he  preferred  having  a  leave  of  ab- 
sence. 

Q.  Did  not  Mr.  Gansevoort  enumerate 
several  articles  of  clothing,  and  ask  him  if 
he  was  supplied  therewith  ? 

A.  I  don't  recollect ;  he  might  have  done 
so. 

Q.  When  was  this  ?  was  it  not  within 
two  weeks  of  the  arrest  ? 

A.  I  think  it  was  about  that  time. 

Q.  How  long  was  it  after  the  execution 
that  you  examined  the  locker  of  Mr.  Spen- 
cer? 

A.  Two  or  three  days. 


NAVAL  COURT  MARTIAL. 


161 


Q.  Was  this  in  compliance  with  a  letter 
of  instruction  from  the  commander,  dated 
December  3  ? 

A.  It.  was  in  compliance  with  a  letter  re- 
ceived from  him ;  I  do  not  recollect  the 
date.  I  would  now  state  that  I  made  the 
grammatical  corrections  in  the  testimony 
after  the  execution,  and  the  addition  in 
Warner's  also,  but  always  before  and  with 
the  approbation  of  the  witnesses. 

Q.  Was  the  testimony  before  the  coun- 
cil, or  Wales's  portion  of  it,  transcribed  by 
him  several  days  after  the  execution  ? 

A.  He  assisted  me  in  making  several 
copies. 

Q.  Did  he  tell  you  anything  then  of  the 
mutiny  being  intended  by  Mr.  Spencer  to 
break  out  before  we  reached  St.  Thomas  ? 

A.  It  has  always  been  my  impression 
that  the  mutiny  was  to  break  out  before  we 
reached  St.  Thomas. 

Q.  Considering  your  proximity  to  St. 
Thomas,  was  not  that  the  most  startling 
fact  to  indicate  the  maturity  of  the  mu- 
tiny ? 

A.  It  was  one  reason,  I  should  think. 

Q.  How  is  it  then  that  your  recollection 
is  so  loose  on  this  point  ? 

A.  [  do  not  pretend  to  repeat  at  this  time 
all  that  I  heard  then — there  are  many  things 
I  can  not  remember. 

Q.  Did  you  hear  any  calculation  then 
made  as  to  when  Midshipman  Rogers  was 
to  have  his  next  mid  watch? 

A .  I  think  I  heard  it  stated  by  some  of 
the  officers. 

Q.  Did  you  ever  hear  any  officer  state 
this  before  the  execution  ?  if  so,  whom  ? 

A.  I  can't  say. 

Q.  Give  the  items  and  dates  of  Mr.  Spen- 
cer's purchases  from  the  purser. 

A.  Sept.  12 — To  two  months  advance, 
$50  ;  segars,  $7.50 ;  sheeting",  $2.76— 
$6026:  1  comb,  15  cents;  1  coarse  ditto, 
25  cents  ;  my  order  on  DuvalJ,  $7  ;  1  pair 
shoes,  $1.10;  1  pair  blue  cloth  trowsers, 
$4.40  ;  cash,  order  to  J.  W.  Wales,  $3.75  ; 
50  segars,  $1.50;  3  Ibs.  tobacco,  $1.14; 
25  segars,  75  cents  ;  tobacco,  38  cents ; 
soap,  30  cents ;  segars,  75  cents  ;  soap,  30 
cents ;  segars,  75  cents ;  segars,  $2.25  ; 
cash,  mess  bill,  $2.80  ;  cash,  $5  ;  ribbon, 
25  cents  ;  handkerchief,  75  cents  ;  grass, 
25  cents  ;  segars,  75  cents ;  segars,  75 
cents  ;  fine  comb,  13  cents  ;  coarse  comb, 
25  cents  ;  tobacco,  38  cents  ;  segars,  75 
21 


cents;  segars,  $1.50;  5  bunches  segars, 
$3.75  ;  1  mattrass,  $4. 

Nov.  1—1-2  Ib.  tea,  50  cents  ;  5  Ib.  su- 
gar, 50  cents  ;  (for  Clark)  soap,  30  cents ; 
tobacco,  38  cents  ;  buttons,  10  cents  ;  to- 
bacco, 38  cents  ;  1-2  Ib.  thread,  45  cents  ; 
soap,  30  cents  (for  King) ;  cash,  $7.17. 

Nov.  11 — Mess  bill  (Monrovia),  $3. 

Nov.  12 — Tobacco,  38  cents  ;  looking- 
glass,  25  cents  ;  tobacco,  38  cents  ;  2  ra- 
zors, 50  cents  ;  cake  soap,  18  cents  ;  sha- 
ving-box and  brush,  25  cents  ;  3  yards 
ribbon,  38  cents  ;  1  scrub  brush,  25  cents ; 
2  bars  soap,  60  cents. 

Nov.  26 — Tobacco,  38  cents  ;  slops, 
$1.97. 

Amount  in  money,  $122.25. 

Q.  Please  count  the  items,  and  tell  me 
how  many  after  the  purchase  of  the  razors  ? 

A.  Seven  items  after  the  purchase  of  the 
razors,  that  will  not  give  the  date,  for  my 
steward  makes  the  charges  in  a  small  book. 

Q.  Was  it  not  in  one  of  the  razor-cases 
you  sold  Mr.  Spencer  that  the  paper  in  his 
locker  was  found  ? 

A.     I  presume  it  was — I  do  not  know. 

Q.  When  you  went  to  Mr.  Wales  for  the 
items  of  charge  against  officers,  for  trans- 
cription into  your  book,  did  he  not  furnish 
you  with  all  subsisting  then  at  that  time  to 
the  date  of  your  transcription  ? 

A.  Yes,  sir. 

Q.  Why,  then,  is  the  date  of  12th  No- 
vember in  your  account  ?  does  it  show  that 
on  that  date  or  afterward  you  transcribed 
the  items  into  your  book  ? 

A.  Either  at  that  time  or  afterward. 

Q.  How  many  items  are  there  from  the 
12th  of  November  till  you  reach  the  razors  ? 

A.  They  are  the  fourth  article  charged. 

Q.  Were  any  purchases  made  by  Mr. 
Spencer  after  his  confinement. 

A.  I  think  not. 

BY    CAPTAIN    BOLTON. 

Q.  Do  you  know  anything,  or  what,  of  a 
misunderstanding  or  ill  will  existing  be- 
tween Commander  Mackenzie  and  Mr. 
Wales  ? 

A.  I  know  there  was  a  misunderstanding 
while  we  were  at  Porto  Rico  ;  I  understood 
Mr.  Wales  to  say,  that  after  he  explained 
the  matter  to  the  commander  he  was  satis- 
fied. 

Q.  Do  you  know  of  any  prejudice  exist- 


162 


PROCEEDINGS  OF  THE 


ing  against  Mr.  Spencer  on  the  part  of  Mr. 
Gansevoort  ? 

A.  No,  sir. 

Q.  Do  you  know  of  any  prejudice  exist- 
ing, anterior  to  the  execution,  on  the  part  of 
Mr.  Wales  against  Mr.  Spencer,  Cromwell, 
or  Small  ? 

A.  I  do  not  know  of  any. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Did  this  misunderstanding  between 
the  captain  and  Mr.  Wales  appear  to  give 
the  latter  uneasiness  ? 

A.  I  don't  know  that  it  did. 

Q.  Was  it  of  a  delicate  nature  ? 

A.  Yes,  sir. 

Q.  Did  it  concern  Mr.  Wales's  charac- 
ter? 

A.  After  he  had  explained  it,  I  should 
think  not. 

Q.  When  did  the  explanation  take  place  ? 

A.  I  do  not  know — some  time  since,  I 
believe. 

Q.   Was  it  before  the  arrest  ? 

A.  I  think  Mr.  Wales  spoke  of  this  mat- 
ter before  the  arrest. 

Q.  Shortly  before  the  arrest  ? 

A.  I  won't  pretend  to  fix  upon  a  time. 

Q.  Were  you  purser  when  the  crew  of 
the  Somers  was  drafted  on  board  ? 

A.  There  was  a  crew  on  board  when  I 
joined  her  in  the  last  of  June. 

Q.  Did  you  not  know  that  out  of  the  166 
apprentices  taken  on  trial  by  Captain  Mac- 
kenzie, only  seventy  odd  were  kept  as  the 
crew  with  which  she  sailed  on  her  last 
cruise  ? 

A.  I  know  there  was  a  transfer  of  ap- 
prentices made  before  she  sailed  her  last 
cruise. 

Q.  Why  was  this  transfer  made  ? 

A.  The  commander  was  not  satisfied,  I 
presume,  with  those  on  board,  and  wanted 
better. 

Q.  Was  it  not  your  understanding  when 
you  sailed  that  your  boys  had  been  care- 
fully picked  from  a  large  number  in  this 
port? 

A.  I  don't  know  that  there  was  any  un- 
derstanding. 

The  testimony  of  Purser  Heiskill  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Commander  Mackenzie  submitted  the 
following  statement,  which  was  read  by  the 
judge  advocate : — 


"  Commander  Mackenzie  admits  that  he 
was  permitted  to  select  the  crew  of  the 
Somers  from  the  whole  number  of  appren- 
tices on  board  the  North  Carolina — that  he 
selected  them  from  their  physical  appear- 
ance and  their  indications  of  health,  activi- 
ty, intelligence,  and  spirit — and  that  he  at 
various  times,  and  particularly  after  his 
return  from  Porto  Rico,  made  numerous 
changes  in  his  crew,  chiefly  on  account  of 
defective  physical  and  mental  constitutions. 

"  Commander  Mackenzie  also  recollects 
that  some  of  the  apprentices  thus  selected 
by  him  were  recommended  by  the  officers 
of  the  North  Carolina,  but  no  record  of  the 
characters  borne  by  them  on  board  that  ves- 
sel was  kept  on  board  the  Somers :  they 
were  estimated  and  promoted  according  to 
the  commander's  own  observation  of  their 
merits,  or  the  recommendation  of  the  first 
lieutenant. 

"  Very  respectfully  submitted  by 

"  ALEX.  SLIDELL  MACKENZIE, 

"  Comd'r  U.  S.  Navy. 

"  Tuesday,  March  7, 1843." 

The  Court  then  adjourned  until  to-mor- 
row (Wednesday),  March  8,  at  10  o'clock, 
A.  M. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March  8,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 

Read,  "        Page, 

"       Bolton,  "        Gwinn, 

"       Turner,  "        Wyman, 

"       Sloat,          Com'dr  Ogden, 
"       Storer,  "        Shubrick, 

Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day,  and 
the  five  pages  not  read  yesterday,  were 
read  and  approved. 

Acting-Midshipman  Tillotson  was  then 
called,  and  being  duly  sworn  by  the  presi- 
dent of  the  court,  testified  as  follows.  He 
was  called  by  the  prosecution,  the  defence 
having  rested.  The  judge  advocate  sub- 
mitted the  following  statement,  which  was 
read  : — 

"  The  judge  advocate  proposes  to  com- 


NAVAL  COURT  MARTIAL. 


163 


mence  the  replicatory  testimony  of  the 
prosecution,  by  calling  some  of  the  officers 
of  the  Somers  who  have  not  been  sworn  by 
the  accused,  and  he  desires  of  the  court  the 
liberty  of  making  their  examination  in 
chief  in  the  nature  of  a  cross-examina- 
tion. 

"  It  is  a  settled  principle  of  law,  that 
where  from  the  circumstance  of  the  transac- 
tions, or  relative  positions  of  the  parties,  one 
side  has  to  call  a  witness  biased  against  its 
views  of  the  case,  the  privilege  will  be  al- 
lowed. Where  a  son  is  adduced  against 
his  father,  or  a  servant  or  agent  against  his 
employer,  are  among  the  illustrations  of  the 
general  principle  of  exception  to  the  usual 
rule  put  down  in  the  books.  The  general 
language  of  Srarkey,  1st  vol.,  162,  is  :  '  The 
court  frequently  permits  an  adverse  witness 
to  be  cross-examined  by  the  party  who  calls 
him.'  And  by  Phillips  on  Evidence,  1st 
vol.,  269,  Cowen's  edition,  it  is  stated,  '  If 
a  witness  should  appear  to  be  in  the  inter- 
est of  the  opposite  party,  or  unwilling  to 
give  evidence,  the  court  will, in  its  discretion, 
allow  the  examination  in  chief  to  assume 
something  of  the  form  of  a  cross-examina- 
tion.7 And  in  Roscoe's  Grim.  Evidence, 
127,  the  decision  of  Chief  Justice  Best,  of 
England,  is  given,  that  if  '  a  witness  stands 
in  a  situation  which  of  necessity  makes  him 
adverse  to  the  party  calling  him,  the  coun- 
sel may,  as  a  matter  of  right,  cross-examine 
him.' 

"  The  learned  labors  of  Justice  Cowen 
have  assembled  the  American  authorities, 
especially  of  New  York,  to  the  same  effect, 
in  an  able  note  to  the  above  citation  from 
Phillips,  to  be  found  in  note  506  to  his  edi- 
tion of  that  author's  treatise. 

"  This  case  furnishes  every  incident  to 
justify  and  enforce  the  exception.  Some 
of  the  witnesses  are  the  relatives  and  con- 
nexions of  the  accused.  But  above  all,  the 
attendant  circumstances  of  the  transaction, 
which  is  the  basis  of  this  prosecution,  and 
the  mutual  position  of  the  officers  ever  since 
its  occurrence,  give  a  peculiar  claim  for  the 
allowance  of  the  privilege.  With  a  view 
to  keep  them  on  the  spol,  and  the  duration 
of  this  trial  not  being  foreseen,  these  offi- 
cers have  remained  aboard  the  Somers  ever 
since,  in  constant  association  with  each 
other,  and  exposed,  by  the  influence  of  natu- 
ral laws  and  motives,  to  the  exchange  of 
their  recollections,  conversations,  and  de- 


ductions, as  to  facts  and  witnesses,  as  might 
well  prevent  the  most  mature  minds  from 
separating  fact  from  opinion  and  belief,  and 
from  avoiding  the  insensible  adoption  by 
each  as  his  own  of  that  knowledge,  or  that 
state  of  mind,  which  was  originally  individ- 
ual and  peculiar  to  one,  or  a  few.  It  will 
naturally,  under  such  circumstances,  occur, 
that  the  several  minds,  if  not  made  critically 
to  practise  self-inspection,  will  not  so  much 
be  that  number  of  mirrors,  reflecting  one 
transaction,  as  the  multiplication  of  the  same 
reflection. 

"  In  fact,  there  is  no  plan  by  which  the 
intercourse  of  these  officers  could,  or  ought 
to  have  been  prevented. 

"  I  am  compelled,  very  reluctantly,  to 
present  to  the  court  two  incidents,  to  illus- 
trate and  enforce,  in  a  manner,  the  above 
views.  When  this  case  was  about  being 
commenced,  Midshipman  Hays  was  desired 
to  favor  me  with  an  opportunity,  by  a  visit, 
to  ascertain  his  information,  with  a  view  to 
the  preparation  and  inception  of  the  case. 
He  waited  on  me,  and  soon  manifested  an 
ingenuous  embarrassment  of  manner,  indi- 
cating some  reluctance  to  communicate  what 
he  knew. 

"  After  replying  to  a  few  trivial  questions, 
he  candidly  stated  to  me,  that  he  did  not 
think  me  entitled,  except  on  the  stand,  to 
his  information.  His  mistake  was  explained 
to  him,  and  he  was  told  that  though  the  law 
did  not  compel  a  witness  to  answer  out  of 
court,  that  habit  and  sense  made  the  right 
as  perfect,  as  if  of  legal  prescription — that 
otherwise  no  case  could  be  prepared.  But, 
observing  his  unremoved  disinclination  to 
the  examination,  I  told  this  courteous  officer 
I  would  not  be  urgent  with  him.  I  felt  as- 
sured he  would  state  our  interview,  and  my 
observations,  to  his  associates,  and  in  good 
season  reflection  would  obviate  any  future 
objection.  I  inferred,  at  the  time,  that  he 
was  acting  on  some  exchange  of  opinion 
with  his  professional  companions,  as  he  had 
called  on  me  after  notice  of  the  object  in 
view  from  his  visit. 

"  This  incident  I  never  should  have  re- 
called, but  for  a  similar  declination  on  yes- 
terday, from  Midshipman  Tillotson.  Before 
the  court  closed,  I  sent  a  messenger  for  that 
officer,  and,  on  his  arrival,  desired  to  know 
whether  he  had  an  objection  to  afford  me, 
in  private,  his  knowledge  of  the  incidents 
of  the  last  cruise  of  the  Somers.  He  po- 


164 


PROCEEDINGS  OF  THE 


litely  replied  he  had.  I  then  found  my  an- 
ticipation frustrated,  as  to  any  change  of 
what  I  supposed  the  view  of  the  officers,  in 
respect  to  the  relative  position  and  duties 
of  a  judge  advocate,  and  witnesses  for  the 
prosecution. 

"  All  the  officers  and  crew  of  that  brig 
were  furnished  by  the  department  for  wit- 
nesses at  my  selection.  With  neither  have 
I  had  any  opportunities  of  conversation.  I 
have  never  sought  any  with  the  crew.  My 
duties  to  the  case  compel  me  to  offer  these, 
gentlemen,  wholly  in  the  dark  as  to  their 
disposition  and  acquaintance  with  facts,  ex- 
cept as  shown  in  the  record  of  the  court  of 
inquiry.  Under  these  circumstances,  it  is 
conceived  the  privilege  asked,  is  but  fair 
and  reasonable. 

"  WILLIAM  H.  NORRIS, 

"  Judge  Advocate" 

The  counsel  for  the  accused  requesting 
time  to  prepare  his  objections  in  writing, 
the  Court  adjourned  until  to-morrow  (Thurs- 
,day),  March  9,  at  10  o'clock,  A.M. 


NAVY  YARD, 
Brooklyn,  March  9,  1843. 
"The  Court  met  this  day  in  pursuance  of 
•adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

"       Bolton,  "        Gwinn, 

"       Turner,  "        Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "        Shubrick, 

Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

The  counsel  for  Commander  Mackenzie 
then  read  the  following  paper  : — 

"  MAY  IT  PLEASE  THE  COURT  :  The  coun- 
sel for  the  defence  in  this  case  have,  from 
its  commencement,  been  desirous  that  the 
examination  of  the  evidence,  on  which  it 
depends,  should  be  conducted  in  the  fullest 
and  freest  manner  ;  and,  actuated  by  these 
considerations,  they  have  repeatedly  for- 
borne to  raise  objections  which,  in  their  ap- 
prehension, were  well  warranted  by  the 
daily  constructions  and  applications  of  the 


rules  of  evidence.  But  the  motion  now- 
made  by  the  judge  advocate,  is  one  so  en- 
tirely unwarranted  by  any  rule  or  practice, 
so  dangerous  as  a  precedent,  and  so  inju- 
rious in  the  imputations  it  conveys  (whether 
these  imputations  be  designed,  or  not),  that 
we  do  not  feel  ourselves  at  liberty  to  give 
it  other  than  the  most  strenuous  opposition. 
"  An  application,  coming  as  this  does, 
from  the  officer  whose  special  duty  it  is  to 
instruct  the  court  upon  questions  of  law,  and 
tending,  at  the  same  time,,  to  overturn  one 
of  the  best  settled  principles  of  that  law 
which  he  is  placed  here  to  expound,  should, 
in  our  judgment,  be  resisted  at  the  outset. 

"  The  judge  advocate  proposes  to  call 
some  of  the  officers  of  the  Somers,  who 
have  not  been  sworn,  and  to  conduct  their 
direct-examination  as  if  it  were  a  cross-ex- 
amination. Whether  the  permission  asked 
for,  if  granted,  is  to  extend  no  lower  than  to 
warrant  officers,  to  embrace  petty  officers,  or 
to  be  used  hereafter  as  a  precedent  for  ask- 
ing the  same  liberty  in  regard  to  those  ap- 
prentices charged  as  participators  in  the 
mutiny,  does  not  at  present  appear,  but  to 
any  extent,  and  every  extent,  we  consider 
the  request  inadmissible.  We  shall  at  pres- 
ent assume  that  the  motion  now  made,  does 
not  apply  to  those  suspected  of  having  joined 
in  the  plot. 

"  They  are  notoriously  willing  witnesses 
for  the  charges,  and  to  give  the  counsel  for 
the  people  liberty  to  put  leading  questions 
to  willing  witnesses  would  be,  in  a  capital 
case,  to  give  it  a  ruthless  and  appalling 
character. 

"  The  rule  distinguishing  direct  from  cross- 
examination,  which  prohibits  counsel  from 
putting  to  the  witnesses  whom  he  calls  lead- 
|  ing  questions  ;  questions  tending  to  contra- 
dict his  own   statements  and  impeach  his 
veracity,   is  one   familiar  to  almost    every 
mind,  and  upon  the  good  sense,  upon  which, 
it  certainly  is  not  necessary  here  to  com- 
ment.    The  practical  distinctions  between 
direct  and  cross-examination  are  well  stated 
I  by  Mr.  Starkie,  vol.  1,  p.  145. 
j       "If  there  is  no  apprehension  that  a  wit- 
|  ness  has  any  other  disposition  than  to  give  a 
1  plain  and  succinct  declaration  of  the  truths, 
I  nor  any  wish  in  the  advocate  to  convey  a  dif- 
ferent impression,  but  his  cross-examination 
is  merely  for  the  purpose  of  explanation  or 
for  ascertaining  further  facts  of  which  he 
may  be  supposed  to  have  a  knowledge  ;  it 


NAVAL  COURT  MARTIAL. 


165 


is  not  materially  distinguished  from  his  ex- 
amination in  chief.  The  peculiar  character 
of  cross-extimination  only  attaches  when  it 
is  suspected  that  the  witness  is  guilty  of 
perjury,  or  at  least  of  misrepresentation  or 
suppression  of  facts,  or  when  it  is  wished  to 
convey  that  impression  to  the  jury. 

"  Such,  as  we  have  already  stated,  is  the 
rule  which  peremptorily  prohibits  the  advo- 
cate from  cross-examining  the  witnesses 
called  hy  himself;  which  prohibits  him,  in 
other  words,  from  impeaching  the  character 
of  the  witness  upon  whom  he  himself  re- 
lies. 

"  What  are  the  exceptions  to  this  rule  ? 
There  is  but  one,  and  that,  grown  out  of  ex- 
perience, is  based  upon  good  sense  and  is 
completely  incorporated  with  the  law,  viz.  : 
that  where  a  witness  upon  the  stand,  after 
his  examination  has  commenced,  shall,  by 
his  answers  or  his  demeanor,  create  any 
suspicion  that  he  will  violate  his  duly  and 
falsify  the  oath  which  he  has  taken,  he 
may,  in  the  discretion  of  the  court,  a  dis- 
cretion to  be  governed  and  controlled  by 
these  circumstances,  be  treated  as  an  ad- 
verse, an  unwilling,  and  a  suspected  wit- 
ness ;  and,  as  such,  be  cross-examined  by 
the  party  calling  him.  This  is  the  only  ex- 
ception having  any  bearing  upon  the  matter 
before  us.  The  very  authorities  cited  by 
the  judge  advocate,  proves  the  correctness 
of  this  proposition,  although  they  are  cited 
by  him  in  such  a  manner  that  they  do  not 
convey  their  entire  force  and  meaning. 

"  The  whole  of  the  extract  from  Starkie 
is  as  follows  : — 

" '  The  mode  of  examination  is  in  truth 
regulated  by  the  discretion  of  the  court,  ac- 
cording to  the  disposition  and  temper  of  the 
•witnesses.  The  court  frequently  permits 
an  adverse  witness  to  be  cross-examined  by 
the  party  who  calls  him.' 

So  says  our  American  authority,  Green- 
leaf  on  Ev.,  482.  '  In  some  cases,  how- 
ever, leading  questions  are  permitted  even 
in  a  direct  examination,  namely,  where  the 
witness  appears  to  be  hostile  to  the  party 
producing  him,  or  in  the  interest  of  the  other 
party,  or  unwilling  to  give  evidence,  or 
where  an  omission  in  his  testimony  is  evi- 
dently caused  by  want  of  recollection  which 
a  suggestion  may  assist.' 

"  So,  again,  in  Baskin  vs.  Carew,  referred 
to  in  Roscoe's  Criminal  Evidence,  and  on 
the  same  page  from  which  the  judge  advo- 


cate has  taken  his  citation,  it  is  decided  that 
'  When  a  witness  examined  in  chief,  by  his 
conduct  in  the  box  shows  himself  decidedly 
adverse  to  the  party  calling. him,  it  is  in  the 
discretion  of  the  judge  to  allow  him  to  be 
cross-examined.' 

"  So  in  Murphy's  case,  8  c.  and  p.  297, 
Coleridge  I.,  after  a  protracted  examination 
of  the  person  on  the  stand,  says,  *  My 
opinion  is  that  this  witness  has  conducted 
himself  in  such  a  way  that  Mr.  Thesigir  is 
entitled  to  cross-examine  him.' 

"  So  in  Chapman's  case,  8  c.  and  p.  558, 
by  Lord  Abingen,  C.  B.  '  If  on  the  trial, 
the  witness  show  any  unfair  bias,  the  coun- 
sel who  calls  him  may  cross-examine  him.' 

"  The  opinion  of  C.  J.  Best,  cited  by  the 
judge  advocate,  was  delivered  in  the  case  of 
Clark  vs.  Laffing  (Ryan  Moody,  125) ;  that 
was  an  issue  sent  from  the  court  of  chan- 
cery, accompanied  with  directions  that  the 
defendant  should  be  examined  as  a  witness. 
It  was  in  this  case  that  Best,C .  J. ,  said,  *  Where 
the  witness  is  necessarily  adverse,  he  may  be 
cross-examined'  It  will  not  be  pretended 
that  officers  of  the  United  States  government 
are  '  necessarily  adverse  to  their  own  gov- 
ernment.' 

"  But  it  is  mere  supererogation  to  accumu- 
late authorities  upon  a  point  in  regard  to 
which  there  is  no  diversity,  nor  any  con- 
flict, between  the  English  and  Americaa 
rule. 

"  The  discretion  of  the  court  is  to  goverm 
the  matter,  and  that  discretion  is  to  be  regu^- 
lated  by  the  conduct  of  the  witness  after  his  - 
examination  shall  have  commenced. 

"  Now,  what  is  the  case  which  the  jud£e 
advocate  presents  ?  He  announces  his  in- 
tention to  call,  not  one,  but  a  class  of  wit- 
nesses ;  and  in  regard  to  them  all,  before  a 
single  interrogatory  is  put,  he  assumes  that 
all  these  gentlemen,  whose  character  and 
whose  commission  equally  forbid  the  idea, 
are  witnesses  not  merely  hostile,  but  unwil- 
ling to  speak  the  truth,  and  who  are  to  be 
placed  by  the  court  without  the  ordinary 
pale  of  evidence. 

"  Protesting  as  we  do  against  this,  in  behalf 
of  the  witnesses  themselves,  and  on  account 
of  the  precedent,  so  dangerous  in  its  conse- 
quences, which  it  threatens  to  establish,  we 
repeat  the  proposition  which  was  made  yes- 
terday, when  this  matter  was  first  started, 
that  the  examination  be  conducted  in  the 
usual  manner  until  it  shall  appear  (until 


166 


PROCEEDINGS  OF  THE 


there  shall  be  the  least  color  for  suspecting) 
that  the  witnesses  are  unwilling  to  speak 
the  truth — pledging  ourselves,  when  that 
fact  is  established,  to  withdraw  all  oppo- 
sition to  the  present  request.  We  can  not 
give  better  proof  that  our  present  applica- 
tion is  dictated  by  no  captious  temper,  nor 
any  desire  to  avoid  the  most  searching 
scrutiny. 

"  It  is  idle  to  speculate,  as  the  judge  advo- 
cate has  done,  upon  the  relative  position  of 
these  witnesses  and  the  defendant.  The 
true  question  is  not,  whether  the  witness 
may  be  biased,  but  whether  he  is  in  fact 
biased,  and  that  can  only  be  established  by 
the  test  of  examination.  It  would  be  in  the 
last  degree  unjust,  to  act  upon  a  contrary 
assumption,  involving  as  it  does  the  viola- 
tion of  duty  and  the  violation  of  an  oath. 

"  The  facts  stated  by  the  judge  advocate  in 
regard  to  Midshipmen  Hays  and  Tillotson, 
are  totally  irrelevant  to  the  matter  before  us. 
The  judge  advocate  occupies  the  place  of  a 
public  prosecutor.  Although  he  is  undoubt- 
edly bound  to  protect  the  party  on  trial,  it  is 
at  the  same  time  his  duty  thoroughly  to  sift 
the  evidence  ;  and  these  gentlemen  may 
well  be  pardoned  for  entertaining  the  im- 
pression that  the  proceeding  on  his  part  was 
one  of  a  hostile  character,  and  for  declining 
on  this  ground  to  confer  with  him  on  the 
subject  in  private,  the  more  especially  when 
it  was  rendered  apparently  so  superfluous 
by  the  protracted  and  elaborate  investiga- 
tion before  the  court  of  inquiry.  One  of 
these  gentlemen  informed  the  judge  advo- 
cate that  he  was  ready  to  give  his  testimony 
on  the  stand,  and  both  are  now  at  his  dis- 
position. He  has  no  right  to  assume,  nor 
should  the  court  assume  that  their  examin- 
ation will  not  be,  so  far  as  fulness  and  fair- 
ness go,  everything  he  could  wish. 

"  We  earnestly  and  respectfully  beg  the 
court  to  deny  an  application  which  tends  to 
overturn  an  important  and  well-settled  rule 
of  evidence,  to  establish  a  precedent  of  a 
very  dangerous  character,  and  which  carries 
with  it  imputations,  whether  intentional  or 
not,  of  a  very  painful  and  irritating  nature. 
"  THEODORE  SEDGEWICK, 

"  Of  Counsel.*' 


The  brief  reply  of  the  judge  advocate  to 
the  paper  of  the  counsel  for  the  accused,  is 
as  follows  : — 


The  counsel  mistakes  the  object  of  a 
cross-examination,  when  he  says  it  is  for 
the  purpose  of  impeachment,  or  of  extorting 
what  a  witness  wishes  to  withhold.  This 
interpretation  would  make  its  exercise,  in 
every  case,  an  insult — as  much  so  when  a 
witness  is  called  by  the  other  side,  as  by 
your  own. 

The  true  object  of  it  is,  to  recognise  the 
influence  of  natural  laws  and  motives  in  the 
most  honest  bosoms,  and  to  refresh  wit- 
nesses whose  feelings  naturally  cause  them 
to  retain  in  vivid  recollection  those  circum- 
stances that  correspond  with  their  views  of 
the  case,  and  to  suffer  to  drop  from  recol- 
lection those  facts  which  appear  unimpor- 
tant to  them,  but  are  of  primary  importance 
to  those  taking  an  opposite  view. 

Had  these  officers  allowed  a  private  ex- 
amination at  the  start,  much  of  the  prolixity 
and  toil  of  cross-examination  would  have 
been  avoided.  As  it  is,  a  bunch  of  keys 
has  been  thrown  the  judge  advocate  ;  one 
word  would  have  told  ihe  one  fitted  to  each 
door,  but  he  has  been  compelled  at  every 
lock  to  try  the  whole  bunch. 

It  will  be  remembered  that  my  applica- 
tion to  Midshipman  Hays  was  before  the 
examination  of  a  single  witness,  but  after  it 
was  determined  my  position  should  be  that 
of  a  prosecutor. 

The  judge  advocate  disclaims  the  protec- 
tion of  the  accused  any  further  than  is  the 
duty  of  any  honest  and  fair  prosecutor,  and 
has  so  done  from  the  first,  and  is  willing  to 
be  regarded  as  intending  to  advance  any 
fact  that  he  may  believe  material  to  the 
right  view  of  the  prosecution. 

The  court  was  then  cleared,  and  on  re- 
opening it,  Commander  Mackenzie  was  in- 
formed that  the  application  of  the  judge  ad- 
vocate could  not  be  granted. 

Purser  Heiskill  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Were  any  of  the  witnesses  asked  be- 
fore the  council  of  officers  as  to  the  carrying 
away  of  the  mast,  or  as  to  the  rush  aft,  as 
indicating  an  insubordination  on  board,  or 
did  any  of  them  testify  as  to  either  of  these 
matters  ? 

A.  I  don't  recollect  that  the  question  was 
asked. 

BY  COMMANDER   MACKENZIE. 

Q.  What  was  the  condition  of  the  offi- 


NAVAL  COURT  MARTIAL. 


167 


cers  of  the  Somers,  as  to  exhaustion,  on  the 
evening  of  the  execution  ? 

A.  They  were  very  much  exhausted ; 
indeed  for  myself  I  could  scarcely  stand, 
being  obliged  to  walk  continually  during 
our  watch. 

The  testimony  of  Purser  Heiskill  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Midshipman  Tillotson  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  and  rank  ? 
How  long  have  you  been  in  the  service, 
and  were  you  on  board  of  the  Somers  in 
her  last  cruise  ? 

A.  My  name  is  John  Tillotson — my  age 
16  ;  I  was  on  board  the  Somers  in  her  last 
cruise,  as  acting-midshipman  ;  I  have  been 
in  the  service  since  July. 

Q.  Did  you  see  the  late  Midshipman 
Spencer  in  the  steerage  on  the  evening  of 
the  25th  November  ?  if  so,  state  all  you  saw 
occur  then  and  there. 

A.  Either  that  night  or  the  evening  pre- 
vious, I  saw  him  engaged  writing  on  a  piece 
of  paper;  after  he  had  finished,  he  said  he 
would  not  have  it  seen  by  any  one  on  any 
account,  or  words  to  that  effect. 

Q.  What  time  was  this  ? 

A.  About  7  o'clock. 

Q.  How  far  did  he  sit  from  you  ? 

A.  Three  or  four  feet. 

Q.  Was  he  writing  on  a  table  ? 

A.  Yes,  sir. 

Q.  By  candlelight  ? 

A.  Yes,  sir. 

Q.  How  long  was  he  writing? 

A.  1  don't  know,  I  don't  recollect  when  I 
first  saw  him. 

Q.  How  long  was  he  writing  under  your 
observation  ? 

A.  I  did  not  observe  him  particularly, 
and  do  not  know  how  long. 

Q.  What  did  he  do  with  the  paper  ? 

A.  I  don't  know — I  think  he  folded  it  up 
and  put  it  in  his  locker ;  I  am  not  certain. 

Q.  Was  his  locker  opened  while  he  was 
writing,  or  did  he  unlock  it  when  he  was 
going  to  put  away  the  paper  1 

A.  1  don't  recollect. 

Q.  Did  you  see  him  begin  to  write  ? 

A.  I  don't  recollect ;  I  think  I  did  not. 

Q.  Do  you  know  where  he  got  the  paper 
from? 

A.  No,  sir. 


Q.  How  long  were  you  in  the  steerage 
with  him  then  ? 

A.  I  don't  recollect. 

Q.  Were  you  as  much  as  twenty  min- 
utes ? 

A.  I  don't  recollect  whether  I  remained 
in  the  steerage  or  not ;  I  don't  know  how 
long  I  was  there. 

Q.  Were  you  sitting  down  while  Mr. 
Spencer  was  writing  ? 

A.  I  think  I  was  standing  up. 

Q.  Did  you  make  any  remarks  to  Mr. 
Spencer  then  ? 

A.  I  don't  recollect  that  I  did. 

Q.  When  did  he  make  the  observation 
that  he  would  riot  have  anybody  to  see  it  on 
any  account  ? 

A.  After  he  finished  writing. 

Q.  How  are  you  sure  it  was  paper  he 
was  writing  on  ? 

A.  I  saw  it. 

Q.   Would  you  be  able  to  identify  it  ? 

A.  No,  sir. 

Q.  Would  you  have  had  a  better  oppor- 
tunity of  identifying  that  paper  by  seeing 
Mr.  Spencer  have  it  as  you  passed  by  him, 
or  as  you  did  ? 

A.  As  I  did. 

Q  Did  Mr  Spencer,  while  you  were  in 
the  steerage  then,  make  any  other  observa- 
tion to  you  ? 

A.  I  don't  recollect  of  any. 

Q.  Did  you  see  him  with  any  liquor 
that  evening'? 

A.  That  evening,  or  the  evening  before, 
I  saw  the  wardroom  steward  give  him,  half 
a  tumbler  full  of  liquor. 

Q.  What  did  he  do  with  the  liquor  ? 

A.  He  put  it  in  his  locker. 

Q.  Did  you  see  him  afterward  take  it 
from  his  locker  ? 

A.  Yes,  sir. 

Q.  What  did  he  do  with  it  after  he  took 
it  from  his  locker  ? 

A.  He  gave  it  to  Small. 

Q.   What  sort  of  liquor  was  it  ? 

A.  I  thought  it  was  brandy. 

Q.  \Vhere  was  Small  when  he  received 
the  liquor  ? 

A.  In  the  steerage. 

Q.  How  came  he  in  the  steerage  ? 

A.  Mr.  Spencer  sent  for  him,  I  think,  or 
called  him. 

Q.  Did  you  hear  any  conversation  then 
between  Small  and  Mr.  Spencer  ? 

A.  No,  sir. 


168 


PROCEEDINGS  OF  THE 


Q.  Was  any  one  else  then  in  the  steer- 
age but  yourself,  Mr.  Spencer,  and  Small  ? 

A.  No,  sir. 

Q.  What  time  was  it  Small  drank  the 
liquor  ? 

A.  I  don't  recollect  what  time,  it  was  in 
the  evening. 

Q.  Did  you  see  Wales  and  Mr.  Spencer 
together  that  evening  at  all ? 

A.  No,  sir,  not  that  I  recollect. 

Q.  What  was  Mr.  Spencer  doing  when 
the  boy  brought  him  the  brandy  ? 

A.  I  don't  recollect. 

Q.  How  long  had  you  been  in  the  steer- 
age before  the  brandy  was  brought  ? 

A.  I  don't  know  how  long. 

Q.  Can  you  make  no  general  estimate 
of  time  ? 

A.  I  suppose  I  had  been  in  there  three 
quarters  or  half  an  hour. 

Q.  Was  Mr.  Spencer  there  during  that 
time  ? 

A.  I  don't  recollect  whether  he  was  there 
the  whole  of  the  time. 

Q.  Was  he  there  the  most  of  the  time  ? 

A.  Yes,  sir,  I  think  he  was. 

Q.  What  others  were  in  the  steerage  du- 
ring that  time  you  have  not  named  ? 

A.  All  had  left  the  steerage  but  myself 
at  the  time  ;  Small  was  called  down,  but 
others  had  been  there. 

Q.  What  was  Spencer  about  during  this 
time? 

A.  I  don't  recollect. 

Q.  Did  you  see  him  with  a  book  ? 

A.  I  don't  recollect — I  believe  not ;  I 
did  not  pay  much  attention. 

Q.  Was  it  not  unusual  for  a  steerage 
officer  to  send  for  a  man  and  give  him 
liquor  ? 

A.  Yes,  sir. 

Q.  Had  you  seen  any  of  the  steerage 
officers  but  Mr.  Spencer  do  it  before  ? 

A.  I  do  not  recollect ;  Mr.  Perry  gave 
one  of  the  petty  officers  liquor — I  think  to 
Stewart ;  one  of  the  wardroom  officers  sent 
it  into  the  steerage. 

Q.  Did  not  this  circumstance  then  im- 
press the  affair  of  the  evening  on  your 
memory  ? 

A.  It  did  not  impress  anything  on  my 
mind  but  the  circumstance  itself. 

Q.  Did  you  hear  the  order  to  the  boy  to 
get  the  brandy  ? 

A.  No,  sir,  there  were  no  orders  given  in 
my  hearing. 


Q.  Was  it  an  unusual  thing  for  brandy  to 
come  from  the  wardroom  to  ihe  steerage  ? 

A.  Not  unusual  for  wardroom  officers  to 
send  brandy  into  the  steerage. 

Q.  Did  the  wardroom  steward  come  from 
the  wardroom? 

A.  Yes,  sir. 

Q.  Who  was  in  the  wardroom  at  the 
time  ? 

A.  I  don't  know  that  anybody  was. 

Q.  At  that  hour  of  the  evening,  was  it 
usual  for  Mr.  Heiskill  or  Doctor  Leecock 
and  Mr.  M.  C.  Perry  to  be  out  of  the  ward- 
room at  the  same  time  ? 

A.  Yes,  sir. 

Q.  Did  Mr.  Spencer  make  any  observa- 
tion to  the  one  who  brought  the  brandy,  or 
the  latter  to  Mr.  Spencer  ? 

A.  I  think  Mr.  Spencer  thanked  the 
wardroom  steward. 

Q.   Give  Mr.  Spencer's  words? 

A.  "  Thank  you,"  I  think  lie  said. 

Q.  Was  the  brandy  in  a  glass  vessel? 

A.  In  a  tumbler. 

Q.  Was  Mr.  Spencer  sitting  when  he 
received  it ;  did  he  place  it  for  a  while  on 
the  table  ? 

A.  1  don't  remember ;  I  think  he  was 
sitting  when  the  wardroom  steward  came  in. 

Q.  Have  you  ever  heard  Mr.  Spencer 
speak  of  leaving  the  navy  ? 

A.  Yes,  sir. 

Q.   What  would  he  say? 

A.  He  said  he  was  going  to  leave  it — I 
don't  recollect  his  words — I  believe  he  said 
when  he  got  back. 

Q.  Did  he  speak  of  leading  a  sea  life  in 
the  merchant  service  ? 

A.  No,  sir. 

Q.  Did  he  say  what  he  was  going  to  do  ? 

A.  No,  sir. 

Q.  About  what  time  was  the  last  con- 
versation of  this  sort  you  heard  ? 

A.  I  don't  recollect,  it  was  in  the  latter 
part  of  the  cruise. 

Q.  Did  Mr.  Spencer  think  himself  not 
well  treated  on  that  brig  ? 

A.  I  don't  know  that  he  thought  himself 
ill-treated,  he  has  spoken  against  the  com- 
mander. 

Q.  What  would  he  say  of  the  comman- 
der ? 

A.  I  frequently  heard  him  call  the  com- 
mander a  humbug  in  the  steerage. 

Q.  Would  it  be  after  anything  unpleasant 
between  him  and  the  commander  ? 


NAVAL  COURT  MARTIAL. 


169 


A.  Yes,  sir ;  sometimes  after  he  had 
been  corrected,  sometimes  not. 

Q.  Have  yon  not  heard  Mr.  Spencer  say 
he  thought  the  commander  meant  to  hurt 
his  feelings,  or  something  of  that  sort  ? 

A.  No,  sir. 

Q.  Would  he  make  these  observations  in 
the  steerage  in  the  presence  of  the  com- 
mander's relatives  and  connexions  ? 

A.  Yes,  sir. 

Q.  Was  it  soon  after  the  voyage  com- 
menced that  you  heard  such  observations  ? 

A.  Yes,  sir.  I  heard  them  before  the 
voyage  commenced,  too. 

Q.  Did  you  hear  of  Mr.  Spencer's  appli- 
cation, before  you  sailed,  to  be  removed 
from  the  brig  ? 

A.  Yes,  sir,  and  from  him. 

Q.  Tell  all  he  said  about  it  ? 

A.  I  heard  him  talking  about  it,  and  say- 
ing that  he  had  applied.  I  do  not  recollect 
his  remarks  on  the  subject. 

Q.  Did  he  tell  you  why  he  applied  ? 

A.  He  said  he  did  not  wish  to  sail  so 
soon,  as  he  had  business  in  New  York 
•which  he  wished  to  settle. 

Q.  Was  this  a  day  or  so  before  you 
sailed  ? 

A.  Yes,  sir. 

Q.  Do  you  know  anything  of  his  getting 
a  box  of  cigars  from  the  purser,  and  dis- 
tributing them  among  the  crew  before  you 
did  sail  ? 

A.  No,  sir. 

Q.  Did  he  give  no  reason  connected  with 
the  commander,  for  wishing  not  to  sail  in 
the  brig  ? 

A.  No,  sir  ;  I  did  not  hear  him  give  any. 

Q.  Was  it  not  understood  among  the  offi- 
cers that  it  was  desirable  to  get  rid  of  Mr. 
Spencer  before  you  sailed  ? 

A.  No,  sir. 

Q.  Where  were  you  when  the  comman- 
der came  on  deck  to  announce  their  doom  to 
the  prisoners  ? 

A.  I  think  I  was  in  the  larboard  gang- 
way ? 

Q.  Did  you  hear  anything  that  passed 
that  day  between  the  commander  and  the 
prisoners? 

A.  I  caught  a  few  words  when  the  com- 
mander said  he  (Mr.  Spencer)  was  going  to 
put  him  to  death  without  a  moment's  warn- 
ing, and  without  a  chance  of  sending  a  line 
to  his  wife  and  children.  I  heard  nothing 
that  Mr.  Spencer  said.  I  heard  Cromwell 
22 


say  he  was  innocent.  I  saw  Small  just  be- 
fore he  was  executed,  moving  his  lips,  and 
heard  his  voice,  but  did  not  understand  what 
he  said. 

Q.  Had  you  any  conversation,  of  any 
kind,  with  these  prisoners  from  the  arrest 
to  their  death  ? 

A.  No,  sir. 

Q.  When  did  you  first  know  there  was 
an  intention  to  put  them  out  of  the  way? 

A.  About  two  hours  and  one  half  1  think 
before  they  were  executed. 

Q.  Did  you  not  hear  any  of  the  officers 
talking  about  it  before  ? 

A.  No,  sir. 

Q.  Did  you  know  what  the  council  of 
officers  were  about  on  the  30th  ? 

A.  I  know  they  were  conferring  together 
on  the  subject  of  the  mutiny. 

Q.  Did  you  hear  the  conversation  on  the 
26th,  between  the  commander,  Mr.  Spencer, 
Small,  and  Wrales,  when  Small  was  called 
aft. 

A.  Yes,  sir  ;  commander  asked  Small  if 
Mr.  Spencer  had  ever  said  anything  to  him 
about  mutiny.  I  think  Small  said  that  he 
had  not.  I  don't  recollect  anything  else 
that  passed  between  the  commander  and 
Small. 

Q.  Was  this  before  or  after  the  comman- 
der told  Mr.  Spencer  that  he  had  aspired  to 
the  command  of  the  brig  ? 

A.  After. 

Q.  Can  you  not  give  the  words  of  Small  ? 

A.  No,  sir. 

Q.  Did  the  commander  say  anything 
about  Mr.  Spencer  being  half  crazy  or 
childish  ? 

A.  No,  sir;  not  that  I  heard. 

Q.  How  long  was  the  conversation  be- 
tween the  commander  and  Small  ? 

A.  Two  or  three  minutes. 

Q.  Was  not  Wales  by  ? 

A.  No,  sir. 

Q.  Can  you  remember  the  words  of  the 
commander  to  Small  ? 

A.  No,  sir. 

Q.  Did  Small  say  that  he  was  in  no 
mutiny,  but  had  a  foolish  conversation  with 
Mr.  Spencer? 

A.  I  think  he  did  say  something  about  a 
foolish  conversation  ;  I  am  not  certain. 

Q.  He  denied  he  was  in  a  mutiny? 

A.  Yes,  sir. 

Q.  Did  Small  say  he  thought  Spencer 
half  crazy  or  childish  ? 


170 


PROCEEDINGS  OF  THE 


A.  No,  sir. 

Q.  What  did  the  commander  say  when 
lie  sent  Small  forward  ? 

A.  Told  him  to  go  forward. 

Q.  Do  you  know  whether  Mr.  Spencer 
wrote  home  to  his  friends,  or  asked  to  be 
allowed  any  one  else  to  do  it  for  him  1 

A.  No,  sir,  I  do  not. 

BY    CAPTAIN    DOWNES. 

Q.  Do  you  mean  to  say  that  nothing 
more  passed  between  Small  and  the  com- 
mander than  you  have  stated,  or  that  you 
heard  nothing  more  ? 

A.  I  heard  nothing  more. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Why  was  it  that  none  but  Mr.  Thomp- 
son of  Mr.  Spencer's  messmates,  took  leave 
of  him  on  the  day  of  the  execution  ? 

A.  I  don't  know  ;  some  were  prevented 
by  attending  to  their  duties. 

Q.  Were  you  surprised  that  the  execution 
was  to  take  place  ? 

A.  No,  sir. 

Q.  Would  not  Mr.  Spencer,  before  the 
steerage  officers,  often  give  tobacco  and  ci- 
gars to  the  crew  ? 

A.  I  have  seen  him  do  it.  I  don't  know 
that  he  knew  I  was  looking  at  him. 

Q.  Did  you  see  any  effort  of  concealment 
of  these  gifts? 

A.  No,  sir ;  not  that  I  remarked. 

Q.  Did  you  ever  see  Mr.  Spencer  drunk 
at  breakfast-time,  or  thereabouts  1 

A.  No,  sir. 

Q.  Did  you  hear  complaints,  before  the 
arrest,  of  the  discipline  of  the  ship  ? 

A.  Yes,  sir ;  I  heard  the  watch-officers 
complain  of  the  boys  for  neglect  of  duty 
and  slowness  to  obey  an  order. 

Q.  Was  this  descriptive  of  the  general 
discipline  of  the  brig,  or  of  particular  boys  ? 

A.  General  discipline. 

Q.  Name  the  officers  you  have  heard  so 
talk  before  the  arrest  ? 

A.  Mr.  Thompson,  Mr.  Rogers,  and  Mr. 
Hays. 

CROSS-EXAMINED     BY     COMD'R.    MACKENZIE. 

Q.  Was  there  any  wine  or  spirits  ever 
allowed  to  the  steerage  mess  ? 

A.  No,  sir ;  they  were  not  allowed  to 
carry  out  a  stock ;  liquor  was  sometimes 
sent  in  from  the  wardroom. 


Q.  With  whom  did  Mr.  Spencer  chiefly 
associate  with,  his  messmates  or  the  crew  ? 

A.  With  the  crew. 

Q.  Have  you  noticed  any  private  conver- 
sation between  Mr.  Spencer,  Cromwell,  and 
Small  ? 

A.  Yes,  sir. 

Q.  What  difference,  if  any,  did  you  dis- 
cover in  the  subordination  of  the  crew,  and 
in  their  readiness  to  obey  orders  before  and 
after  our  arrival  at  Madeira  ? 

A. -Before  our  arrival  at  Madeira  they 
obeyed  orders  with  more  alacrity  than  they 
did  after. 

Q.  Did  you  notice  any  surliness  in  the 
crew  subsequent  to  the  arrest  of  Mr.  Spen- 
cer, and  previous  to  the  execution  ? 

^4.  Yes,  sir;  more  surliness  then,  than  at 
any  other  time. 

Q.  If  you  gave  an  order  at  that  time  was 
it  obeyed  readily  ? 

A.  No,  sir. 

Q.  What  was  the  subordination  of  the 
crew  and  the  facility  of  carrying  on  duty 
subsequent  to  the  execution  ? 

^4.  Much  better. 

Q.  Do  you  know  whether  the  commander 
had  expressly  requested  that  neither  spirits 
nor  wine  should  be  admitted  into  the  steer- 
age ? 

A.  I  think  I  have  heard  the  officers  say- 
ing so.  I  know  that  was  the  order  of  the 
vessel. 

Q.  Did  you  not  say  before  the  court  of 
inquiry  you  saw  Small  drink  the  liquor,  the 
night  before  Mr.  Spencer's  arrest  ? 

A.  Yes,  sir;  I  see  the  record,  it  is  so 
stated  there  ;  it  is  right  if  I  said  so  then,  be- 
cause I  had  a  distinct  recollection.  I  did 
say  before  the  court  of  inquiry  that  it  was 
the  night  before  he  was  arrested  that  Mr. 
Spencer  was  engaged  with  the  paper,  and 
what  I  then  said  is  correct. 

The  examination  of  Midshipman  Tillot- 
son  was  here  closed,  his  evidence  was  read 
to  him  and  corrected  by  him. 

Charles  Sibley  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  rank  ?  were 
you  on  board  the  Somers  in  her  last  cruise  ? 

A.  My  name  Charles  Sibley,  my  age  15, 
I  was  on  board  of  the  Somers  in  her  last 
cruise  as  first-class  boy? 


NAVAL  COURT  MARTIAL. 


171 


Q.  Is  your  time  about  expiring  ? 

A.  No,  sir. 

Q.  Did  you  hear  Mr.  Spencer  talk  about 
leaving  the  navy  ? 

A.  I  was  forward  one  night  in  the  dog- 
watch, by  the  bitts  ;  Mr.  Spencer  came  for- 
ward, he  was  talking  about  merchantmen  ; 
I  asked  him  if  he  was  ever  in  a  merchant 
vessel ;  he  said  he  was ;  I  said  to  him  "  Mate, 
sir,  I  suppose."  "  Mate  ?  mate  be  damned ! 
before  the  mast."  I  don't  recollect  of  having 
any  more  talk  with  him  then. 

Q.  Did  he  talk  about  giving  up  his  mid- 
shipman's place  ? 

A.  Yes,  sir;  he  said  when  he  got  back, 
he  expected  to  give  it  up. 

Q.  Did  you  ever  hear  him  talk  about 
buying  a  vessel  ? 

A.  I  never  heard  him  talk  about  buying 
a  vessel ;  I  heard  him  ask  Cromwell  how 
much  a  vessel  would  cost,  to  charter  her  to 
go  to  the  northwest  coast. 

Q.  When  did  you  hear  this  conversation  ? 

A.  We  were  just  off  Pico. 

Q.  When  was  it  you  heard  the  conversa- 
tion about  leaving  the  navy  ? 

A.  At  night  in  the  dog-watch,  after  leav- 
ing Madeira,  I  think. 

Q.  Were  any  others  by,  when  this  took 
place  ? 

A.  The  crew,  I  suppose,  were  walking 
round ;  I  did  not  notice  any  one  in  particu- 
lar. 

Q.  Did  you  ever  have  any  difficulty  with 
Small  ? 

A.  Never  any  particular  difficulty ;  he 
would  be  good  sometimes,  and  would  some- 
times get  in  a  passion. 

Q.  Do  you  remember  any  incident  with 
him  about  a  knife  ? 

A.  Yes,  sir;  before  we  sailed,  he  had  a 
sheath  knife,  and  one  night  he  had  a  piece 
of  raw  pork  on  his  biscuit,  eating  it ;  I  was 
sky-larking  around  him ;  he  was  kneeling 
down;  he  flew  into  a  rage,  and  said,  "  I 
would  as  soon  run  that  knife  into  you,  as 
run  it  into  the  pork." 

Q.  Did  you  ever  see  Mr.  Spencer  give 
Cromwell  money  ? 

A.  Yes,  sir ;  about  two  days  sail  from 
Madeira,  Mr.  Spencer  came  forward  with 
two  bills  ;  he  came  to  Cromwell ;  he  was 
talking  with  him,  and  said,  "  This  money 
won't  be  good,  I  suppose,  where  we  are  go 


ing 


No,"  says   Cromwell,  "  it  will  be 


good  for  you  when  you  get  home."     Mr 


Spencer  showed  Cromwell  the  bills,  and 
said,  "  Cromwell,  what  would  you  do  with 
t,  if  you  had  it  ?"  Cromwell  said,  "  When 
we  get  in,  I  will  send  it  home  to  my  wife." 

Q.  Any  one  by  ? 

A.  I  do  not  recollect  who ;  it  was  scrub 
and  wash-clothes  morning;  they  were  all 
around  the  forecastle,  and  he  gave  Cromwell 
he  money. 

Q.  Did  you  ever  hear  anything  of  the 
nutiny  before  the  arrest  ? 

A.  No,  sir. 

Q.  Did  you  ever  hear  any  one  propose 
to  rescue  the  prisoners  ? 

A.  No,  sir. 

Q.  Did  you  suppose  there  would  be  a 
rescue  ? 

A.  I  did  not  know  what  to  think. 

Q.  Are  you  about  to  be  discharged  from 
your  enlistment  ? 

A.  My  time  has  not  expired,  but  I  expect 
my  discharge. 

The  examination  of  Charles  Sibley  here 
closed  ;  his  evidence  was  read  to  him,  and 
corrected  by  him. 

Oliver  H.  Perry  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

BY  THE    JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  rank,  and 
were  you  on  board  the  Somers  in  her  last 
cruise  ? 

A.  My  name,  Oliver  H.  Perry  ;  my  age. 
seventeen ;  I  was  on  board  of  the  Somers 
in  her  last  crnise,  as  commander's  clerk. 

Q.  Did  you  hear  Mr.  Spencer  speak  of 
leaving  the  navy  ? 

A.  I  have  a  slight  recollection  of  it;  I 
am  not  positive. 

Q.  Did  you  hear  any  conversation  be- 
tween Mr.  Spencer  and  Lieut.  Gansevoort, 
when  the  latter  spoke  of  having  a  vessel  of 
his  own  shortly  ? 

A.  I  recollect  Mr.  Spencer  telling  Mr. 
Gansevoort  that  he  expected  to  have  the 
command  of  a  vessel  shortly ;  I  do  not  re- 
member Mr.  Gansevoort's  reply. 

Q.  Where  arid  when  was  this  conversa- 
tion? 

A.  On  the  forecastle,  a  few  days  before 
the  arrest. 

Q.  Were  they  talking  as  usual  ? 

A.  Yes,  sir. 

Q.  Were  not  Mr.  Spencer  and  Mr. 
Gansevoort  on  good  terms  ? 


172 


PROCEEDINGS  OF  THE 


A.  As  far  as  I  know,  they  were. 

Q.  Do  you  remember  Mr.  Spencer  giv- 
ing any  cigars,  when  he  first  came  onboard, 
to  the  crew  ? 

A.  Yes,  sir  ;  before  we  sailed. 

Q.  How  many  cigars — was  it  not  a 
box? 

A.  He  bought  a  box,  and  distributed 
around  among  the  petty  officers,  I  believe. 

Q.  Whom  did  he  buy  the  box  of? 

A.  The  purser. 

Q.  Did  you  hear  him  talk  before  you 
sailed,  of  leaving  the  brig  ? 

A.  Yes,  sir  ;  he  said  he  intended  to  ap- 
ply to  be  transferred  to  the  Grampus — this 
was  a  few  days  before  we  sailed. 

Q.  Was  he  much  dissatisfied  that  the 
answer  to  his  application  had  not  arrived 
before  you  sailed  ? 

A.  I  don't  think  he  was  ;  I  don't  recol- 
lect. 

Q.  Did  you  hear  the  conversation  be- 
tween the  commander  and  Small,  when  Mr. 
Spencer  was  arrested  ? 

A.  No,  sir. 

Q.  Do  you  know  whether  Mr.  Spencer 
wrote  home  to  his  friends  ? 

A.  No,  sir. 

Q.  Do  you  know  whether,  at  his  request, 
any  one  else  wrote  for  him  ? 

A.  No,  sir. 

Q.  Did  you  not  say,  in  the  presence  of 
the  secretary  of  the  navy,  and  other  gentle- 
men, that  you  were  of  the  impression  that 
Mr.  Spencer  did  send  a  written  message 
home  ? 

A.  At  the  time  of  the  execution  it  was 
my  impression  he  did  send  a  message  home  ; 
the  captain  was  copying  something. 

Q.  How  near  were  you  to  the  command- 
er when  he  was  writing — when  you  were 
of  this  opinion  ? 

A.  I  was  standing  between  the  binnacles, 
about  four  or  five  feet  off. 

Q.  State  the  conversation  that  then  passed 
between  the  commander  and  Mr.  Spencer  ? 

A.  I  did  not  hear  any  of  it ;  I  thought  he 
•was  writing  a  letter  home  to  his  parents, 
and  did  not  try  to  hear  it. 

Q.  Did  you  hear  the  commander  ask  Mr. 
Spencer,  if  he  wished  to  write  home  ? 

A.  No,  sir;  I  don't  recollect  of  hear- 
ing it. 

Q.  Did  you  see  the  commander  order 
Dunn  to  bring  him  paper  and  ink  ? 

A.  Yes,  sir. 


Q.  Did  you  hear  Mr.  Spencer  say  he 
could  not  write  with  his  irons  on  ? 

A.  No,  sir. 

Q.  Did  Mr.  Spencer  take  the  pen,  and 
try  to  write  ? 

A.  I  did  not  see  him. 

Q.  Did  you  hear  the  commander  tell  him 
he  would  write  for  him  ? 

A.  No,  sir. 

At  this  time,  Captain  Mackenzie  came  to 
the  judge  advocate,  and  asked  him,  "  Why 
do  you  ask  this  question,  about  Mr.  Spen- 
cer's not  being  able  to  write  in  irons  ?  He 
declined  to  write."  "Yes,  sir;"  the  judge 
advocate  replied,  "  but  I  am  told  he  after- 
ward dictated  to  you  what  to  write."  Cap- 
tain Mackenzie  then  said,  "  He  said  he  did 
not  wish  to  write."  "  Yes,  sir,"  was  the 
reply  of  the  judge  advocate,  "  but  I  am  told 
he  afterward  dictated  to  you  what  to  write." 
"  Yes,  he  did,"  was  Captain  Mackenzie's 
answer.  The  judge  advocate  then  said, 
"  Then  he  did  dictate  to  you  what  to  write." 
"  Yes,  he  did,"  Captain  Mackenzie  answer- 
ed, "  the  substance  of  it  is  in  my  report — 
my  official  report."  The  judge  advocate 
then  stated  to  the  court,  "  There  is  no  use 
of  further  examination  on  the  point,  as  Cap- 
tain Mackenzie  admits  that  Mr.  Spencer  did 
dictate  to  him  what  to  write."  Captain 
Mackenzie  then  said,  "  Yes,  sir,"  looking  to 
the  president  of  the  court.  "  What  is  that  ?" 
said  either  the  president,  or  some  member 
of  the  court.  Then  the  judge  advocate  said,, 
"  Captain  Mackenzie  says  Mr.  Spencer  did 
dictate  to  him  what  to  write."  Then  Mr. 
Sedgwick,  the  counsel  of  the  accused,  said, 
"  What  is  that  ?"  The  judge  advocate  re- 
peated, "  Captain  Mackenzie  says  Mr.  Spen- 
cer did  dictate  to  him  what  to  write."  Mr. 
Sedgwick  then  said  to  the  court,  "  What 
has  that  to  do  with  this  examination  ?" 

The  judge  advocate  proposing  to  be 
sworn  to  prove  the  above  statement,  Capt. 
Mackenzie,  in  open  court,  admits  it  to  be  a 
correct  one  of  what  transpired  between  him 
and  the  judge  advocate  and  the  court ;  that 
he  made  this  admission,  as  he  supposed  the 
witness  knew  nothing  about  it. 

The  above  conversation  took  place  on  the 
9th  March,  just  before  the  court  adjourned, 
and  was  reduced  to  writing  on  the  next 
morning,  and  allowed  to  be  of  record  as  for 
March  9.  Immediately  after  the  above  con- 
versation was  reduced  to  writing,  Comman- 
der Mackenzie  submitted  the  following  pa- 


NAVAL  COURT  MARTIAL. 


173 


per,  which  was 
orcl : — 


likewise  admitted  of  rec- 


"  Not  having  for  some  time  read  his  offi- 
cial report,  or  refreshed  his  recollection  of 
what  occurred  between  himself  and  the 
late  acting  Midshipman  Philip  Spencer, 
Commander  Mackenzie  may  have  been 
mistaken  in  admitting  that  Mr.  Spencer  de- 
clined to  write,  that  he  said  he  did  not  wish 
to  write. 

"  In  his  official  report  Commander  Mac- 
kenzie finds  it  stated,  that  Mr.  Spencer  was 
asked  if  he  had  no  message  to  send  to  his 
friends,  and  that  he  replied,  '  None  that  they 
would  wish  to  hear.'  That  when  subse- 
quently he  was  urged  to  send  some  message 
he  said,  '  Tell  them  I  die  wishing  them  ev- 
ery blessing  and  happiness.' 

"  It  does  not  appear  by  that  official  re- 
port, that.  Mr.  Spencer  was  either  asked  to 
write  to  his  friends,  or  that  *  he  said  he  did 
not  wish  to  write.'  But  the  invitation  to 
send  messages  to  his  friends,  when  first 
given  to  him,  of  course  embraced  the  offer 
for  himself  to  write  them  ;  and  it  was  only 
after  earnest  solicitations  from  Commander 
Mackenzie,  that  he  consented  to  send  any 
message  whatever. 

"  The  message  of  Mr.  Spencer  to  his 
friends  was  communicated  to  the  Secretary 
of  the  Navy,  as  the  least  painful  mode  that 
occurred  to  Commander  Mackenzie  of  ma- 
king it  known  to  them. 

"  This  paper  is  offered  to  the  court  by 
Commander  Mackenzie,  after  an  examina- 
tion of  his  official  report,  as  a  correct  state- 
ment of  what  occurred  on  the  occasion. 

"  Respectfully  submitted  by 

"ALEX.  SLIDELL  MACKENZIE, 
"  Comd'r  U.  S.  Navy." 

The  examination  of  Mr.  O.  H.  Perry 
was  here  suspended ;  his  evidence  was 
read  to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Friday),  March  10,  at  10  o'clock, 
A.  M. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March  10,  1843.  > 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 


Captain  Bolton,       Captain  Gwinn, 
"       Turner,  "       Wyman, 

"       Sloat,          Com'dr  Ogden, 
Storer,  "       Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Mr.  O.  H.  Perry  recalled. 

BY  THE  JUDGE  ADVOCATE. 

Q.  After  the  mast  was  carried  away, 
were  you  sent  for  the  commander  ? 

A.  Yes,  sir. 

Q.  Who  came  for  you  ? 

A.  I  don't  recollect  the  person. 

Q.  Was  it  not  M'Kee  ? 

A.  I  don't  recollect. 

Q.  What  then  occurred  between  you  and 
the  commander  1 

A.  He  asked  me  why  I  did  not  attend  to 
my  duties  better,  and  said  that  I  must  do  it 
better  in  future. 

Q.  What  was  the  commander  alluding 
to? 

A.  To  my  not  attending  to  the  brace  at 
the  time  they  were  hauling  on  it. 

Q.  Did  he  say  to  you,  "  This  is  all  your 
fault,  sir,"  or  words  to  that  effect.  ? 

A.  I  don't  recollect. 

Q.  What  reply  did  you  make  the  com- 
mander ? 

A.  I  did  not  make  any  ;  I  said,  I  think, 
I  understood  the  order  to  have  been  to  haul 
on  the  brace  ? 

CROSS-EXAMINED    BY  COMD'R   MACKENZIE. 

Q.  Were  you  on  the  forecastle  when 
the  maintop-gallant-mast  was  carried  away  1 
if  so,  state  what  you  observed,  and  all  that 
occurred. 

A.  I  was;  we  were  setting  the  fore-sky- 
sail ;  I  was  .attending  to  it,  the  order,  as  I 
understood  it  was  "  a  small  pull  of  the 
weather-main-royal-brace."  I  passed  that  or- 
der ;  I  then  turned  to  attend  the  fore-sky-sail ; 
I  saw  the  commander  jumping  off  the  round 
house  ;  he  jumped  off  with  some  anxiety, 
as  if  he  apprehended  that  the  mast  might 
be  carried  away.  Small  at  this  time  was 
pulling  on  the  brace,  and  I  sung  out  belay ; 
he  gave  it  a  pretty  heavy  jerk,  and  then  be- 
layed it.  I  went  to  do  it,  and  I  think  I  did 


174 


PROCEEDINGS  OF  THE 


take  the  turns  off,  and  by  that  time  the  mast 
went.  I  had  to  go  five  or  six  feet.  I  was 
then  called  aft  by  the  commander,  when 
the  conversation  given  in  the  examination- 
in-chief  took  place. 

Q.  Did  the  commander  give  any  order 
when  he  jumped  off  the  round-house  ? 

A.  "  Belay,"  I  understood  him. 

Q.  Was  it  usual  to  haul  gently,  or  with  a 
jerk,  on  the  main-royal-braces  ? 

A.  Gently,  I  should  think. 

Q.  With  whom  was  Mr.  Spencer  most 
intimate,  with  his  messmates,  or  with  the 
crew  1 

A.  As  intimate  with  the  crew  as  he  was 
with  his  messmates  ? 

Q.  Have  you  ever  known  the  comman- 
der to  reprove  Mr.  Spencer  ?  how  often  ? 
when  ?  State  all  that  you  know  in  relation 
to  this  matter. 

A.  Once  he  reproved  him  at  the  time 
we  were  exercising  guns  at  quarters.  Mr. 
Spencer  was  exercising  the  guns  at  his  di- 
vision, and  he  did  not  speak  loud  enough 
for  the  men  to  hear  him  ;  he  told  him  to 
speak  louder  two  or  three  times.  I  think 
the  first  lieutenant  spoke  to  him. 

Q.  Have  you  ever  been  reproved  by  the 
commander  ?  If  so,  how  often  ? 

A.  Yes,  sir,  a  good  many  times ;  I  can 
not  tell  how  often. 

Q.  Shortly  before  the  arrest  of  Mr.  Spen- 
cer, did  you  hear  him  say  anything  about 
the  chronometer  ? 

A.  I  heard  him  ask  Mr.  Rogers  if  it  was 
a  good  one. 

Q.  Did  he  ask  what  its  rate  was  ? 

A.  My  impression  is  that  he  did ;  I  am 
not  positive  about  it. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Was  Mr.  Spencer  familiar  with 
Browning,  Stewart,  Collins,  and  King  ? 

A.  No,  sir,  I  don't  think  he  was ;  I  have 
seen  him  talking  to  Stewart ;  he  was  not 
intimate  with  him,  I  think. 

Q.  Did  not  Mr.  Spencer  exhibit  that  his 
motive  for  asking  about  the  chronometer 
was  to  ascertain  the  distance  from  St.  Tho- 
mas, to  calculate  the  chance  of  winning  a 
bet  with  Mr.  Rogers,  as  to  the  arrival  of  the 
brig  there  in  eight  days. 

A.  I  do  not  know  his  motive;  I  only 
know  what  he  did  do. 

Q.  Was  it  not  at  the  time  of  the  bet  ? 

A.  I  am  not  positive  ;  I  think  it  was. 


The  testimony  of  Mr.  O.  H.  Perry  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Acting-Midshipman  Delonde  was  then 
called,  and  being  duly  sworn  by  the  presi- 
dent of  the  court,  testified  as  follows  : — 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  rank  ?  Were 
you  in  the  Somers  in  her  last  cruise  ? 

A.  My  name  is  Adrian  Delonde  ;  my  age 
17  ;  I  was  on  board  the  Somers  in  her  last 
cruise,  as  acting-midshipman. 

Q.  Did  you  go  with  Lieutenant  Ganse- 
voort  to  hold  a  conversation  with  Mr.  Spen- 
cer after  his  arrest  ? 

A.  Yes,  sir. 

Q.  State  when,  and  what  occurred. 

A.  On  the  29th  November,  about  10 
o'clock  in  the  morning,  I  was  told  to  write 
some  names  on  a  piece  of  paper,  as  Mr. 
Spencer  dictated ;  Mr.  Spencer  was  trans- 
lating the  names  in  Greek  characters,  on 
the  paper  taken  from  his  locker. 

Q.  What  was  the  first  remark  of  Mr. 
Gansevoort  to  Mr.  Spencer  then"? 

A.  I  do  not  remember  Mr.  Gansevoort's 
mentioning  anything  to  Mr.  Spencer  at  the 
time. 

Q.  Did  you  go  up  with  Mr.  Gansevoort 
to  Mr.  Spencer  ? 

A.  No,  sir. 

Q.  Were  Mr.  Gansevoort  and  Mr.  Spen- 
cer in  conversation  before  you  went  up  to 
them  ? 

A.  I  saw  Mr.  Gansevoort  approach  Mr. 
Spencer ;  Mr.  Gansevoort  told  me  to  get  a 
piece  of  paper. 

Q.  Where  did  you  get  the  paper  from  ? 

A.  Fiom  the  steerage. 

Q.  Where  was  Mr.  Gansevoort  when 
you  came  out  of  the  steerage  ? 

A.  Standing  by  the  arm-chest,  by  Mr, 
Spencer. 

Q.  Were  they  apparently  in  conversa- 
tion ? 

A.  To  the  best  of  my  recollection  I  be- 
lieve they  were. 

Q.  State  the  first  remark  of  Mr.  Spencer 
when  you  got  up  to  them,  or  of  Mr.  Ganse- 
voort. 

A.  The  first  remark  Mr.  Gansevoort  made 
to  Mr.  Spencer  was,  "  Go  on,  and  dictate  to 
me  the  names  on  the  paper." 

Q.  Was  this  in  Mr.  Gansevoort's  usual 
tone? 


NAVAL  COURT  MARTIAL. 


175 


A.  Yes,  sir. 

Q.  What  did  Mr.  Spencer  say  ? 

A.  I  do  not  recollect  of  his  saying  any- 
thing before  he  went  on  to  translate. 

Q.  Did  he  not  say,  "  yes,"  "  certainly," 
"  to  be  sure,"  or  some  words  to  that  effect ; 
try  and  recollect. 

A.  He  might  have  said  so,  but  I  do  not 
remember. 

Q.  Did  not  Mr.  Spencer  appear  willing 
to  comply  ? 

A.  in  telling  the  names  he  was. 

Q.  What  questions  were  asked  by  Mr. 
Gansevoort  of  him  ? 

A.  He  first  asked  Mr.  Spencer  to  trans- 
late some  paragraphs  which  were  there,  and 
which  he  refused  to  do  while  I  was  there, 
but  said  he  would  do  it  in  private  with  him. 

Q.  Did  not  Mr.  Spencer  say  to  Mr.  Gan- 
sevoort, "  I  have  no  objection  to  tell  you, 
sir,"  or  words  to  that  effect  ? 

A.  I  believe  he  did. 

Q.  What  other  questions  were  asked  by 
Mr.  Gansevoort  ? 

A.  He  asked  about  some  stenographic 
marks  at  the  head  of  one  of  the  columns  ; 
Mr.  Spencer  said  they  meant  nothing. 

Q.  What  other  question  did  Mr.  Ganse- 
voort ask  ? 

A.  I  know  of  no  other. 

Q.   What  else  did  Mr.  Spencer  say  ? 

A.  Nothing  else  after  I  copied  the  names. 

Q.  During  the  time,  did  he  say  anything 
about  his  conversation  on  the  booms  ? 

A.  I  don't  remember. 

Q.  Did  he  not  say  he  had  no  idea  of  a 
mutiny,  but  was  talking  foolishly  with  Small 
and  Wales  ? 

A.  I  do  not  remember. 

Q.  Try  and  recollect — did  not  Mr.  Spen- 
cer say  that  it  was  a  mean,  foolish  talk — that 
he  had  amused  himself  that  way  in  the  John 
Adams  and  the  Potomac,  with  some  of  the 
men  there — it  was  a  sort  of  wild  notion  he 
used  to  be  thinking  about,  and  idling  with 
the  men  with  ? 

A.  I  do  not  remember  having  heard  any- 
thing of  that  kind  ;  he  may  have  said  so. 

Q.  Do  you  remember  no  observation  of 
Mr.  Spencer,  about  the  general  subject  ? 

A.  Not  at  that  time  ;  the  first  day  he  was 
arrested,  I  heard  him  say  he  had  held  such 
a  conversation  with  Mr.  Wales,  but  it  was 
all  a  joke. 

Q.  Did  he  go  on  to  explain  how  it  was 
all  a  joke  ? 


A.  No,  sir. 

Q.  Did  Mr.  Gansevoort  ask  him  when 
he  made  out  the  papers,  or  did  he  say  ? 

A.  No,  sir ;  I  did  not  hear  him  say  ? 

Q.  Did  Mr.  Spencer  say  whom  he  had 
or  had  not  spoken  to,  on  the  list  ? 

A.  I  heard  him  say  he  had  not  spoken  to 
some  whose  names  were  on  the  list,  but  I 
do  not  remember  who  they  were. 

Q.  Was  Mr.  Gansevoort  by  then  ? 

A.  Just  as  I  left  the  arm-chest,  Mr.  Spen- 
cer said  to  Mr.  Gansevoort,  "  There  are 
names  on  that  list  that  I  have  not  spoken 
to  ;"  I  left  Mr.  Gansevoort  talking  with  him. 

Q.  Did  he  mention  any  other  names  but 
those  of  Small  and  Wales,  that  he  had  spo- 
ken to  ? 

A.  I  do  not  remember. 

Q.  Did  you  hear  the  John  Adams  and 
Potomac  mentioned  ? 

A.  No,  sir. 

Q.  How  long  after  you  left,  did  you  ob- 
serve Mr.  Gansevoort  in  conversation  with 
Mr.  Spencer  ? 

A.  I  then  went  below,  and  remained 
some  ten  or  fifteen  minutes,  and  before  I 
came  on  deck,  Mr.  Gansevoort  went  be- 
low. 

Q.  How  were  Mr.  Spencer's  objections 
to  translate  the  papers  in  your  presence  re- 
moved ? 

A.  Mr.  Gansevoort  told  him,  I  knew  the 
translation — need  not  fear  to  translate  it,  or 
words  to  that  effect ;  I  had  heard  Mr.  Ro- 
gers translate  it. 

Q.  Why  did  he  state  himself  willing  to 
tell  the  matter  to  the  older  officer  ? 

A.  I  do  not  know  why. 

Q.  Did  not  Mr.  Spencer  answer  Mr. 
Gansevoort,  so  as  to  show  his  pride  was 
unwilling  to  expose  any  matter  of  the  kind 
to  the  ship's  young  officers  ? 

A.  No,  sir  ;  he  did  not  tell  him  why. 

Q.  When  he  said,  "I  have  no  objection 
to  tell  you,"  did  not  his  tone  indicate  a  wil- 
lingness to  tell  him,  but  not  you  ? 

A.  Yes,  sir. 

Q.  Did  he  seem  friendly  to  Mr.  Ganse- 
voort ? 

A.  I  do  not  remember  whether  he  did,  or 
not. 

Q.  Was  he  in  grief  at  the  time  ? 

A.  No,  sir ;  he  looked  a  little  more  mel- 
ancholy and  gloomy  than  usual. 

Q.  Was  he  mild  and  sad  in  his  tones  ? 

A.  I  do  not  remember. 


176 


PROCEEDINGS  OF  THE 


Q.  Can  you  now  remember  a  single  oth- 
er circumstance  of  that  interview  ? 

A.  No,  sir. 

Q.  How  would  Mr.  Gansevoort  call  his 
name — would  he  say,  "  Spencer,"  or  "  Mr. 
Spencer,"  in  the  conversation  ? 

A.  Mr.  Spencer. 

Q.  Did  you  regard  Mr.  Gansevoort  as 
talking  to  one  willing  to  answer  him  ? 

A.  Yes,  sir. 

Q.  Has  Green  ever  pricked  India  ink 
in  your  arm  ? 

A.  Yes,  sir. 

Q.  Was  he  not  about  it  on  the  26th  Nov., 
or  when  ? 

A.  On  the  26th  Nov.,  the  same  day  Mr. 
Spencer  was  arrested. 

Q.  Where  was  it  done  ? 

A.  In  the  fore-top. 

Q.   Did  you  hear  any  talk  of  mutiny  then  ? 

A.  No,  sir ;  Mr.  Spencer  was  not  up 
there  then. 

Q.  Have  you  heard  Mr.  Spencer  speak 
of  his  plans  of  life  ? 

A.  No,  sir. 

Q.  Have  you  had  any  other  conversation 
with  the  prisoners  that  were  executed  ? 

A.  I  had  with  Cromwell ;  I  was  passing 
by  him,  after  his  fate  had  been  made  known 
to  him,  he  told  me  to  tell  the  officers  to 
overlook  this. 

Q.  Was  his  tone  anxious  and  entreatful  ? 

A.  Yes,, sir. 

Q.  Did  you  see  Mr.  Spencer  drawing  a 
brig,  or  with  the  draft  of  one  ?  was  it  like 
the  Somers — had  it  a  flag  ? 

A.  No,  sir;  it  was  not  like  the  Somers, 
and  had  no  flag. 

The  examination  of  Act'g  Mid'n  Delonde 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Daniel  M'Kinley  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age  ?  were  you 
on  board  of  the  Somers  in  her  last  cruise  ? 

A.  My  name  is  Daniel  M'Kinley;  my 
age,  21  ;  I  was  on  board  of  the  Somers  in 
her  last  cruise,  as  landsman. 

Q.  Had  you  been  to  sea  before?  how 
long  had  you  been  in  the  service  ? 

A.  I  never  was  at  sea  before  I  came  into 
the  service ;  I  have  been  at  sea  nine 
months. 


Q.  Had  you  been  spoken  to  by  Mr.  Spen- 
cer, as  to  mutiny  ? 

A.  No,  sir. 

Q.  Did  you  know  your  name  was  on  any- 
paper  of  his  ? 

A.  Not  till  I  got  home,  and  got  confined 
on  board  the  North  Carolina ;  I  saw  it  in 
the  Sun.  I  beg  pardon,  I  should  say  I  was 
in  the  ward-room,  making  up  beds,  the  night 
Mr.  Spencer  was  arrested  ;  the  paper  was 
found  in  Mr.  Spencer's  locker  ;  I  then  heard 
Mr.  Rogers  read  the  names  ofT;  I  heard 
that  my  name  was  there,  Green,  M'Kee, 
and  Wilson's,  and  then  I  came  on  deck,  af- 
ter I  had  the  beds  made,  and  told  them 
boys  what  I  heard  ;  I  told  them  I  saw  them 
read  the  names  off  a  paper,  and  saw  them 
take  them  down  on  another  piece  of  paper. 

Q.  What  boys  did  you  speak  to  on  the 
deck? 

A.  Green,  Wilson,  the  sailmaker,  and 
M'Kee  ;  I  think  I  told  Van  Velzor,  I  am 
not  sure. 

Q.   Did  you  say  anything  to  these  boys? 

A.  No,  sir ;  not  that  I  recollect. 

Q.  Was  there  any  conversation  when  the 
paper  was  found  among  the  officers  ? 

A.  Yes,  sir;  Mr.  O.  H.  Perry  said,  when 
the  names  were  read  off,  "  That  those  were 
his  chickens,"  alluding  to  Mr.  Spencer,  as 
I  judged ;  that  is  all  I  heard  in  the  steer- 
age. 

Q.  Who  took  any  names  off? 

A.  I  think  it  was  Mr.  Rogers ;  I  could 
not  say  for  certain, 

Q.   Where  were  the  officers  ? 

A.  In  the  steerage  at  the  time. 

Q.   How  did  you  see  ? 

A.  Mr.  Gansevoort's  bed  and  Mr.  Spen- 
cer's locker  opened  right  opposite  the  ward- 
room door ;  it  was  open  ;  1  was  engaged 
in  making  Mr.  Gansevoort's  bed. 

Q.  Do  you  know  anything  of  Wilson's 
dirk? 

A.  I  was  ashore  on  the  coast  of  Africa, 
I  believe  that  it  was  at  Monrovia  that  I 
went  ashore,  I  having  no  knife  at  the  time  ; 
I  went  ashore  there,  and  saw  one  of  the 
natives  with  a  knife  ;  I  spoke  to  Mr.  Heis- 
kill  about  buying  it  for  me ;  he  sent  me 
aboard  the  brig  with  some  things  in  the  2d 
cutter;  when  I  came  back,  Warner  had 
bought  the  knife  I  looked  at,  and  Mr.  Heis- 
kill  bought  an  African  dirk  instead  of  that, 
and  gave  it  to  me.  I  came  on  board  with 
the  knife,  and  wore  it  for  two  or  three  days. 


NAVAL  COURT  MARTIAL. 


177 


Wilson  saw  the  knife,  and  said  he  "wanted 
to  buy  it  as  a  curiosity  to  take  to  New 
York.  I  would  not  let  him  have  it  then  ; 
I  went  up  on  the  top-gallant  yard,  and  it 
nearly  threw  me  off,  it  caught  in  some  of 
the  rigging ;  when  I  came  down  I  told  Wil- 
son he  might  have  it  for  $1.  I  do  not  rec- 
ollect what  it  cost,  and  I  let  Wilson  have 
it ;  he  promised  to  give  a  dollar  the  first 
grog-money,  or  the  first  dollar  he  could  get. 

Q.  Was  any  one  by,  at  your  sale  of  the 
knife  ? 

A.  There  were  a  great  many  on  the  fore- 
castle at  the  time.  I  don't  know  that  they 
saw  me  sell  it  to  him ;  many  saw  it  before 
I  did  sell  it  to  him. 

Q.  Have  you  seen  Wilson  use  that  knife 
afterward  ? 

A.  In  cutting  holes  into  hammocks,  and  ; 
shifting  the  numbers. 

Q.  Did  you  miss  muster  after  the  arrest 
of  Mr.  Spencer  ?  and  if  so,  state  when  and 
why  ? 

A.  It  was  after  the  arrest;  I  can  not 
state  the  date  and  hour ;  me  and  M'Kee 
turned  in  and  out  with  one  another  when 
the  watch  was  called  ;  we  made  a  bargain 
in  the  first  of  the  cruise  to  wake  one  anoth- 
er up,  when  the  watches  were  called.  I 
came  up  on  deck  ;  I  asked  M'Kee  why  he 
did  not  call  me.  He  told  me  that  the  offi- 
cers would  not  let  him  stir ;  that  they  were 
ordered  to  lie  down  on  the  deck,  and  when 
he  lay  down  he  fell  asleep,  and  did  not 
•wake  up — that  was  why  I  missed  my  mus- 
ter, being  used  to  be  awaked  by  one  an- 
other. 

Q.  Was  this  conversation  with  M'Kee 
on  deck  ? 

A.  Yes,  sir. 

Q.  In  the  hearing  of  any  officer  ? 

A.  I  suppose  Browning  must  have  heard 
it ;  I  won't  be  certain  ;  he  was  standing  at 
the  hatch. 

Q.  Were  you  spoken  to  for  the  failure  ? 

A.  By  Mr.  Thompson  ;  I  told  him  the 
same  reason  as  I  have  stated  to  the  court. 

Q.   Was  this  at  the  time  ? 

A.  I  came  on  deck  about  fifteen  minutes 
after  the  watch  was  called,  and  then  stated 
to  Mr.  Thompson  my  reason. 

Q.  Were  you  punished  ? 

A.  He  told  me  to  stand  in  the  main-rig- 
ging. 

Q.  Was  any  one  else  punished  at  the 
same  time,  for  the  same  cause  ? 
23 


A.  Not  that  I  recollect. 

Q.  Were  you  assisting  in  swaying  up 
the  mast  ? 

A.  Yes,  sir. 

Q.  Did  you  receive  any  injury  in  do- 
ing it? 

.A.  I  did,  in  hoisting  up  the  top-g;!.!l:u:t 
yard. 

Q.  What  injury  ? 

A.  When  we  were  hoisting  the  yard,  it 
got  foul  of  the  main-top;  the  bunt  of  the 
sail  caught  in  an  iron,  went  underneath  the 
top;  I  pushed  very  hard  to  clear  it  off  thf; 
top,  and  in  doin£  so,  I  felt  something  jump 
in  my  groin — a  pain  ;  I  put  my  band  down 
to  feel  what  was  the  matter,  and  felt  a  small 
lump,  about  the  size  of  a  marble  ;  I  did  my 
work  as  usual,  but  it  still  pained  me  a  great 
deal. 

Q.  Was  this  reported  to  the  surgeon,  and 
when  ? 

A.  It  was  reported  to  the  doctor  after  I 
was  put  in  irons  ;  and  after  the  execution, 
I  reported  it ;  it  was  about  the  size  of  an 
eg<r,  began  to  get  blue  and  very  hard ;  I  re- 
ported it  to  Mr.  Gansevoort,  told  him  I  had 
a  great  pain  in  my  groin,  and  he  said  he 
would  see  the  commander  about  it ;  the 
next  I  heard,  Mr.  Gansevoort  called  the 
doctor  on  deck;  the  doctor  examined  me, 
put  me  across  a  match-tub,  and  said  I  only 
caught  cold.  I  told  him  how  it  had  hap- 
pened ;  he  said  not,  I  had  only  caught  cold. 

Q.  Did  you  see  Small,  before  the  mast, 
went? 

A.  No,  sir,  I  saw  him  after  the  mast 
went ;  he  was  then  going  up  the  main-rig- 
ging- 

Q.  Did  you  see  Cromwell  before  it  went  ? 

A.  No,  sir,  not  until  he  was  in  the  main- 
top ;  I  was  on  the  forecastle  hatch. 

The  examination  of  Daniel  M'Kinley 
was  here  suspended ;  his  evidence  was 
read  to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Saturday),  March  11,  at  10  o'clock, 
A.  M. 


U.  S.  NAVY  YARD, 
Brooklyn,  March  11,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

"       Bolton,  "       Gwinn, 


178 


PROCEEDINGS  OF  THE 


Captain  Turner,       Captain  Wyman, 
"       Sloat,          Com'dr  Ogden, 
"       Storer,  "        Shubrick, 

Members  ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

Daniel  M'Kinley  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  were  you  about  when  the  mast 
was  carried  away  ? 

A.  ]  was  washing  up  my  mess  things. 

Q.  Who  was  by  with  you  ? 

A.  Nobody  on  the  forecastle,  except  Mr. 
O.  H.  Perry,  who  was  on  the  forward  ja- 
cob's-ladder,  that  I  recollect. 

Q.  What  were  the  orders  given  then  ? 

A.  I  was  washing  my  things  ;  there  was 
an  order  given  to  haul  on  the  weather-main- 
royal  brace ;  I  don't  remember  the  exact 
words ;  generally  the  order  is  to  clap  on 
the  royal  brace. 

Q.  Were  any  other  orders  given  by  any 
of  the  junior  officers  1 

A.  Mr.  O.  H.  Perry  gave  orders  for  half 
a  dozen  to  clap  on  the  brace. 

Q.  After  the  mast  went,  was  Mr.  0.  H. 
Perry  sent  for  by  die  commander  ? 

A.  I  heard  an  order  passed  to  send  Mr. 
O.  H.  Perry  aft. 

Q.  Did  you  report  Waltham  for  taking 
wine  ? 

A.  I  first  told  the  boy  in  the  ward-room, 
Robbins,  the  fiddler,  and  afterward  Mr. 
Gansevoort  came  to  me,  and  asked  me 
about  it.  Waltham  was  in  irons  at  this 
time,  on  the  birth-deck,  and  told  me  there 
were  three  bottles  of  wine  in  the  starboard 
locker,  in  the  ward-room,  and  told  me  I 
might  have  it ;  I  asked  him  if  it  was  his ; 
he  said  it  was  ;  then  I  told  this  wardroom 
boy  what  Waltham  had  said,  and  then 
Lieut.  Gansevoort  came  to  me. 

Q.  Did  you  hear  Capt.  Mackenzie  speak 
of  taking  the  prisoners  to  the  United  States  ? 

A.  I  don't  recollect  whether  I  did,  or 
not. 

Q.  Did  you  hear  his  speech  at  the  time 
of  Waltham's  flogging  ? 

A.  After  Waltham  was  flogged,  he  made 
a  speech  to  the  boys,  which  I  did  not  hear, 
or  which  I  don't  recollect  if  I  did. 

Q.  At  the  time  of  what  is  called  the  rush 


aft,  did  you  hear  any  orders  of  Mr.  Ro- 
gers ? 

A.  I  heard  Mr.  Rogers  say  to  Browning, 
that  he  wanted  him  to  come  forward  and 
use  his  colt. 

Q.  What  were  the  men  and  boys  about  ? 

A.  Some  were  about  hoisting  the  new 
top-gallant-mast,  and  some  of  them  lying 
down  on  the  forecastle. 

Q.  Where  were  the  most  of  them  ? 

A.  Most  of  them  aft ;  about  25  or  30  of 
the  smaller  boys  lying  down  on  the  fore- 
castle. 

Q.  How  far  aft? 

A.  About  the  mainmast  and  in  the  gang- 
ways. 

Q.  Had  you  been  a  waiter  on  the  gentle- 
men in  the  wardroom  ? 

A.  Not  exactly  a  waiter ;  I  took  charge 
of  the  cots  and  beds — two  cots  and  two 
beds. 

Q.  Did  you  ever  have  any  talk  with 
Lieutenant  Gansevoort  about  a  leave  of  ab- 
sence ? 

A.  Yes,  sir;  coming  home,  he  asked  me 
in  the  wardroom  if  I  had  a  pea-jacket,  shoesr 
and  stockings ;  asked  me  if  there  was  noth- 
ing I  wanted.  I  told  him  there  was  not, 
excepting  a  leave  of  absence  when  I  got  to 
New  York  to  go  and  see  my  friends.  He 
said  that  I  should  have  it,  if  they  would  take 
him  for  security ;  asked  me  if  the^re  was 
nothing  else  I  wanted.  I  told  him  not.  He 


said  I  Avas  a  "  d- 


sight  better  off  than 


he  was."  Dr.  Leecock  and  Mr.  Heiskill 
were  present  ;  whether  the  master  was 
there,  or  not,  I  don't  recollect. 

Q.  How  long  was  this  before  the  arrest? 

A.  I  should  think  a  week. 

Q.  Did  you  continue  cot-boy  after  the 
arrest  ? 

A.  I  did,  after  the  arrest  of  Mr.  Spencer, 
Cromwell,  and  Small,  for  two  days ;  then 
Mr.  Gansevoort  told  me  he  did  not  want 
me  to  be  coming  into  his  room  any  more. 

Q.  Did  Mr.  M.  C.  Perry  ever  give  you 
segars  ? 

A.  Yes,  sir,  often — and  sent  me  to  his 
locker  for  them. 

Q.  Was  Mr.  Spencer  familiar  with  the 
crew  ? 

A.  I  should  think  he  was. 

Q.  Less,  or  more  so,  than  any  other  offi- 
cers ? 

A.  He  would  talk  to  the  crew  in  general 
more  than  any  other  officer. 


NAVAL  COURT  MARTIAL. 


179 


Q.  Have  you  seen  any  one  but  Wilson 
use  his  dirk  ? 

A.  I  don't  recollect  of  seeing  anybody 
use  it ;  they  might  have  done  so,  and  I  not 
know  it. 

Q.  Was  Mr.  Spencer  familiar  with  any 
of  the  petty  officers  ? 

A.  Yes,  sir,  with  Stewart — as  much  so 
with  him  as  any  other  man  on  board  of  the 
brig;  he  would  often  give  him  segars  and 
tobacco  ;  he  would  joke  with  him,  and  tell 
him  he  would  get  him  flogged.  Mr.  Spen- 
cer was  not  more  intimate  with  me  than 
with  the  others.  I  have  often  seen  him 
talking  to  Anderson,  Browning,  and  Stew- 
art ;  he  might  have  been  talking  to  others  ; 
I  never  saw  him. 

Q.  Was  he  familiar  with  Cromwell  ? 
A,  I  could  not  say ;  I  think  I  have  seen 
him'  talking  with  Cromwell,  but  I  am  not 
certain. 

Q.  Was  you  in  Cromwell's  watch  ? 
A.  No,  sir. 

Q.  Have  you  known  Mr.  Gansevoort  to 
give  brandy  to  any  of  the  crew? 

A.  Yes,  sir;  I  have  known  him  to  give 
it  to  Cromwell  and  Browning  ;  I  don't  rec- 
ollect any  others. 

Q.  When  was  you  arrested,  and  what 
occurred  ? 

A.  On  the  30th  of  November,  at  morn- 
ing quarters,  I  \vas  arrested.  The  com- 
mander put  Wilson  into  irons  ;  when  he 
was  put  in  irons,  the  commander  cried, 
"  Send  M'Kinley  aft."  I  went  aft ;  the 
commander  and  Mr.  Gansevoort  held  pis- 
tols at  my  head,  and  told  me  to  sit  down 
Mr.  Gansevoort  told  King,  the  gunner,  to 
stand  by  to  knock  out  their  brains,  if  they 
should  make  a  false  motion  ;  I  was  put  in 
irons  then  ;  he  ordered  Green  and  M'Kee 
aft;  he  put  them  in  irons  also.  Mr.  Gan- 
sevoort ordered  me  to  get  on  all  fours  and 
creep  round  to  the  larboard  side,  as  I  could 
not  walk. 

Q.  What  did  the  commander  say  at  your 
arrest  ? 

A.  He  said  nothing  to  me.  Green  said 
to  Commander  Mackenzie,  "  I  am  very  sorry 
for  this  ;"  the  commander  said,  "  So  am  I  ; 
and  I  hope  I  will  not  have  to  touch  any  of 
you  apprentices." 

Q.  Begin  and  give  all  that  occurred  on 
the  day  of  execution. 

A.  The  day  of  execution  I  think  was  the 
day  after  I  was  put  in  irons  :  I  should  think 


it  was  about  2  o'clock  ;  the  commander 
came  out  of  the  cabin  in  full  uniform  ;  he 
went  to  Mr.  Spencer  and  told  him  he  had 
ten  minutes  to  live  ;  he  went  to  Cromwell 
and  Small — I  did  not  hear  what  he  said  to 
them  ;  I  was  six  or  eight  feet  from  Mr. 
Spencer  ;  I  heard  the  commander,  after  he 
had  gone  to  Cromwell  and  Small,  and  had 
come  back  to  Mr.  Spencer,  ask  him  if  he 
had  a  prayer-book  ;  I  don't  know  what  an- 
swer Mr.  Spencer  made,  but  I  heard  the 
commander  order  three  prayer-books.  Mr. 
Spencer  read  a  few  prayers  ;  I  should  think 
he  was  looking  in  the  book ;  and  then  the 
commander  asked  him  if  he  wished  to 
write  ;  Mr.  Spencer  said  that  he  did  ;  the 
commander  ordered  Dunn  to  fetch  paper 
and  camp-stool  out  of  the  cabin  ;  Spencer 
took  the  pen  in  his  hand — he  said,  "  I  can 
not  write."  The  commander  spoke  to  him 
in  a  low  tone  ;  I  do  riot  know  what  he  then 
said  ;  I  saw  the  commander  writing  ;  wheth- 
er Mr.  Spencer  asked  him  to  write  for  him, 
or  not,  I  can't  say.  The  commander  told 
Mr.  Thompson,  before  he  began  to  write,  to 
tell  him  when  the  time  was  up  ;  he  did  so 
when  the  time  was  up,  but  the  commander 
kept  on  writing  ;  when  he  got  through 
writing,  he  went  forward,  and  Mr.  Ganse- 
voort came  aft,  who  was  standing  forward 
of  me,  and  of  the  trunk ;  the  next  I  saw 
Mr.  Gansevoort  come  and  support  Mr. 
Spencer  as  he  was  going  forward  ;  I  don't 
know  who  it  was  that  came  and  supported 
Cromwell  and  Small.  The  next  order  I 
heard  was,  "  Stand  by,  fire."  Mr.  Ganse- 
voort at  the  same  moment  cried  "  Whip," 
and  the  men  were  run  up  to  the  yard-, 
arm. 

Q.  Did  Mr.  Spencer  say  anything  when 
the  commander  told  him  he  was  to  die  in 
ten  minutes  ? 

A.  He  told  him  he  was  not  fit  to  die  ; 
that  he  wished  to  live  longer  to  get  ready. 
The  commander  said,  "  I  know  you  are  not, 
but  I  can  not  help  it." 

Q.  Did  you  see  Cromwell  when  the 
commander  went  to  him  ? 

A.  I  did. 

Q.  What  was  Cromwell  about  ? 

A.  He  was  reading  a  book,  I  think  the 
Penny  Magazine.  t 

Q.  Give  what  passed. 

A.  He  was  reading  ;  I  don't  know  what 
the  commander  said  to  him,  but  he  dropped 
the  book,  and  fell  down  on  his  knees  and 


J80 


PROCEEDINGS  OF  THE 


cried,  "  God  of  the  Universe,  look  down  on 
my  poor  wife  ;  I  am  innocent." 

Q.  Did  Mr.  Spencer  speak  then  ? 

A.  I  heard  Mr.  Spencer  say,  as  the  com- 
mander stood  opposite  the  cabin  gangway, 
"  These  are  about  the  last  words  I  am  go- 
ing to  say,  and  I  trust  they  will  be  be- 
lieved." The  commander  asked  him,  "  What 
is  that  ?"  Mr.  Spencer  said,  "  Cromwell  is 
innocent."  The  commander  walked  away 
and  came  back  to  Spencer,  and  said  some- 
thing to  him  in  a  low  tone  ;  what  it  was  I 
did  not  know  ;  and  then  Mr.  Gansevoort 
came  and  supported  Mr.  Spencer,  arid  took 
him  forward  to  the  gangway. 

Q.  How  were  you  as  to  position  during 
these  scenes  ? 

A.  I  was  on  the  quarter-deck,  abaft  of 
No.  5  larboard  gun. 

Q.  How  was  you  turned  to  the  brig  ? 

A.  With  my  face  aft — I  was  told  to  keep 
myself  with  rny  face  aft. 

Q.  After  Mr.  Spencer's  saying  Cromwell 
was  innocent,  where  did  the  commander  go  ? 

-4.  I  think  he  went  toward  the  gangway 
on  the  larboard  side. 

Q.  Did  you  see  him  talking  with  any 
one  ? 

A.  I  am  not  certain  whether  I  saw  him 
speak  to  Mr.  Gansevoort  or  not ;  I  don't 
know — my  face  was  aft. 

Q.  Was  Mr.  Spencer  asked  if  he  wished 
to  write  more  than  once  ? 

A.  I  don't  think  he  was. 

Q.  While  the  writing  was  going  on, 
what  was  the  position  of  Mr.  Spencer  and 
the  commander  ? 

A.  Mr.  Spencer  was  sitting  at  the  for- 
ward end  of  the  arm-chest,  arid  the  com- 
mander in  front  of  him  on  a  camp  stool. 

Q.  How  long  did  the  writing  continue  ? 

A.  I  could  not  say  how  long  the  writing 
continued  ;  he  sat  there  upward  of  twenty 
minutes,  or  half  an  hour. 

Q.  Could  you  see  the  commander's  face  1 

A.  One  side  of  it ;  I  could  not  see  the 
full. 

Q.  Give  the  action  of  Mr.  Spencer  and 
the  commander  then. 

A.  Mr.  Spencer  sat  still  at  the  end  of  the 
arm-chest  while  the  commander  was  wri- 
ting ;  I  could  not  see%  Mr.  Spencer's  face, 
his  back  was  toward  my  face. 

Q.  Could  you  see  the  commander's  pen  1 

A.  His  face  and  right  arm. 

Q.  Did  you  watch  his  motions  ? 


A.  I  was  looking  at  him  and  could  see 
what  he  did — he  seemed  to  be  writing. 

Q.  Did  he  write  fast  I 

A.  I  could  see  the  motions  of  the  hand 
and  pen,  but  not  the  writing. 

Q.  Were  there  any  pauses  in  the  writing? 

A.  There  seemed  to  be,  by  the  pausing 
of  the  hand  and  pen. 

Q.  What  did  Mr.  Thompson  say  when 
he  came  up  ? 

A.  He  looked  at  the  time,  came  to  the 
commander,  arid  told  him  the  time  was  up  ; 
the  commander  kept  on  writing. 

Q.   How  long  after  this  did  he  write  ? 

A.  I  should  think  about  fifteen  minutes. 
.  Q.  Give  the   words  of  the  commander 
when  he  asked  Mr.  Spencer  if  he  wished 
to  write,  if  you  recollect  them. 

A.  "  Do  you  wish  to  write  ?"  1  believe 
that  is  all  I  recollect  of  hearing  the  com- 
mander say ;  whether  Mr.  Spencer  said 
"  yes"  or  "  no,"  I  do  not  know  ;  'the  paper 
and  camp  stool  came  up  after  that. 

Q.  Do  you  remember  anything  else  Mr. 
Spencer  said  that  day  ? 

A.  Nothing  but  what  I  have  stated. 

Q.  Did  you  hear  the  commander  say 
anything  after  he  got  up  from  writing? 

A.  I  do  not  recollect — I  saw  him  go  for- 
ward. 

Q.  Did  you  see  the  paper  as,  or  after, 
the  commander  got  up  ? 

A.  As  he  got  up ;  it  was  in  his  hand  ;  I 
think  it  was  folded. 

Q.  Did  you  know  or  expect  what  was  to 
be  done  when  the  commander  came  on  deck 
in  full  uniform  ? 

A.  I  did  not ;  seeing  him  come  up  in  full 
uniform,  I  expected  there  was  some  vessel 
in  sight,  and  that  he  was  going  to  board  her. 

Q.  Were  you  told  you  were  not  to  be 
executed  ? 

A.  I  was,  while  the  men  were  hanging 
at  the  yard-arm — not  before. 

Q.  Did  you  expect  to  be  executed  after 
hearing  what  was  said  to  Mr.  Spencer  ? 

A.  I  did. 

Q.  Did  any  one  take  leave  of  Mr.  Spen- 
cer ? 

Q.  Mr.  Thompson  was  the  only  one  I 
saw. 

Q.  Was  Mr.  Spencer  in  tears  ? 

A.  No,  sir,  he  was  not ;  Mr.  Thompson 
was  in  tears  when  he  shook  hands  with 
him. 

Q.  You  have  given  the  manner  of  Crom- 


NAVAL  COURT  MARTIAL. 


181 


well  as  to  position  on  hearing  his  fate  ; 
what  was  Mr.  Spencer's  ?  describe  it. 

A.  He  was  leaning  with  his  head  in  his 
hands  on  the  arm-chest,  when  the  com- 
mander told  him  he  had  only  fifteen  minutes 
to  live  ;  he  turned  half  round,  and  said  he 
was  not  fit  to  die— wished  to  have  more 
time  to  prepare. 

Q.  What  were  his  tones  ? 

A.  They  seemed  to  be  mild,  calm — did 
not  seem  to  be  agitated ;  he  merely  made 
that  request. 

Q.  What  his  looks  ? 

A.  Could  not  say  as  to  his  looks — he 
looked  at  the  commander. 

Q.  What  the  tones  of  Cromwell  ? 

A.  He  seemed  in  despair — spoke  in  a 
crying  tone. 

Q.   Who  gave  the  word  to  fire  ? 

A.  I  am  not  certain  whether  it  was  the 
commander  or  first  lieutenant ;  Mr.  Ganse- 
voort  cried  "  Whip" — that  I  am  sure  of. 

Q.  Why  can't  you  be  sure  of  the  other  ? 

A.  I  turned  my  head  at  the  words 
"  Stand  by,"  "  Fire,"  and  saw  Mr.  Ganse- 
voort  throw  up  his  arm  and  cried  "  Whip." 

Q.  Did  the  commander  speak  to  you  that 
day? 

A  He  did  while  the  men  were  hanging 
at  the  yard-arm,  but  not  before  ;  he  came 
to  me  and  said,  "  M'Kinley,  did  you  hear 
what  I  said  to  those  oiher  young  men  ?"  I 
told  him  "No,  sir;"  "Well,"  he  said,  "it 
is  the  general  opinion  of  the  officers  that 
you  are  a  pretty  good  boy,  but  I  shall  have 
to  take  you  home  in  irons,  to  see  what  the 
Secretary  of  the  Navy  can  do  for  you;"  he 
said,  "  In  risking  your  life  for  other  persons 
(or  something  to  that  effect)  is  all  that  saves 
you."  He  left  me  then,  and  I  spoke  to  Mr. 
Gansevcort — I  asked  him  if  he  thought  the 
commander  thought  1  was  guilty  of  any- 
thing of  the  kind  ;  he  said,  "  No,  I  assure 
you  if  he  did  he  would  have  strung  you  up." 

Q.  Before  your  arrest,  had  you  any  con- 
versation at  night  with  Wilson  on  a  gun  ? 

A.  I  think  1  did  ;  I  think  it  was  the  night 
before  Mr.  Spencer  was  arrested,  Wilson 
asked  me,  "  M'Kinley,  what  did  Spencer 
say  to  you?"  I  told  him  that  Mr.  Spencer 
said  he  knowed  what  I  was  going  to  do 
when  the  brig  got  into  St.  Thomas  ;  I  told 
Wilson  I  asked  Mr.  Spencer  what  I  was 
going  to  do  ;  Mr.  Spencer  told  me  I  was 
going  to  run  from  the  brig  in  St.  Thomas  ; 
I  told  him  I  was  not — that  I  never  had  such 


an  idea  in  my  head — that  I  hoped  I  never 
should — that  Mr.  Gansevoort  had  promised 
me  a  week's  liberty  when  1  got  back  to 
New  York  to  go  and  see  my  friends :  that 
is  all  the  conversation  I  had  with  Wiison. 

Q.  Did  you  ever  talk  with  Wilson  about 
fortune  ? 

A.  Yes,  sir,  I  forgot  to  mention  that : 
Wilson  told  me  we  would  go  to  a  fortune- 
teller's ;  1  asked  him  if  he  believed  in  them, 
he  said  that  he  did  ;  I  told  him  that  I  did 
not ;  he  said  when  we  got  to  New  York  he 
could  take  me  to  one  who  could  tell  me 
what  had  passed  and  what  was  to  come  to 
pass  ;  I  told  him  I  did  not  believe  it. 

Q.  Was  any  body  by  ? 

A.  Not  that  I  recollect. 

Q.  Did  you  see  Tyson  ? 

A.  No,  sir,  1  did  not. 

Q.  Did  you  find  Tyson  asleep  that  night 
at  all  ? 

A.  No,  sir,  I  did  not. 

Q.  Where  were  you  and  Wilson  sitting? 

A.  Between  No.  4  and  5  gun. 

Q.  Did  you  talk  with  Tyson  that  night  at 
all? 

A.  No,  sir,  1  did  not;  if  I  did,  I  do  not 
recollect  it? 

Q.  Did  you  tell  any  one  else  but  Wilson 
of  this  conversation  of  yours  with  Mr. 
Spencer  ? 

A.  Yes,  sir;  I  told  Browning,  and  Ander- 
son, the  captain  of  the  forecastle. 

Q.  When,  and  how,  came  you  to  tell 
them  ? 

A.  Browning  told  me  if  I  had  ever  had 
any  conversation  with  Mr.  Spencer  to  go 
and  tell  it ;  this  was  on  Monday  after  Crom- 
well and  Small  were  ironed.  I  stated  to 
them  what  I  stated  to  the  court  ;  they  told 
me  to  go  and  tell  it  to  the  officers,  that  they 
would  think  no  more  of  it ;  I  went  to  the 
mainmast  to  tell  it,  and  Mr.  Gansevoort  had 
gone  into  the  cabin  at  this  time,  he  came 
out  of  the  cabin  and  ordered  the  officer  of 
the  deck  to  beat  to  quarters.  Mr.  Ganse- 
voort came  toward  me,  1  touched  my  hat 
and  said,  "  Mr.  Gansevoort,"  intending  to 
stop  him,  but  he  went  forward  and  took  no 
notice  of  me  ;  they  beat  to  quarters,  and  I 
went  to  my  quarters ;  the  captain  came  on 
deck ;  Wilson  was  standing  aft  at  No.  5 
gun  starboard  side,  he  spoke  to  Wilson,  I 
do  not  know  what  he  said ;  he  was  put  in 
irons,  when  he  was  ironed  the  captain 
ordered  M'Kinley  aft. 


182 


PROCEEDINGS  OF  THE 


Q.  Were  you  punished  the  last  cruise  ? 

A.  I  was  punished  for  squabbling  on  the 
berth-deck,  they  made  it  out  fighting  on  the 
log-book,  and  I  may  as  well  say  so  ;  this 
was  on  the  last  cruise.  I  broke  my  liberty 
at  Santa  Cruz  and  was  punished,  no  other 
time  that  I  recollect.  I  was  punished  at 
Porto  Rico  on  the  first  cruise. 

Q.  When  were  you  put  in  the  bags  ? 

A.  After  the  examination  and  before  to 
St.  Thomas. 

Q.  How  were  the  bags  put  on  you  ? 

A.  They  were  laid  on  deck  and  we  got 
in  them  as  well  as  we  could,  feet  foremost  ? 

Q.  Was  your  bag  ever  put  over  your 
head  ? 

A.  Yes,  sir;  the  first  night  it  was  tied 
over  my  head  ? 

Q.  Who  were  the  persons  who  superin- 
tended and  did  it? 

A.  Sergeant  Garty  was  always  there  when 
we  were  put  into  the  bags.  I  could  not  see. 
I  could  not  say  who  tied  it  over  my  head  ; 
he  was  there  then. 

Q.  Did  you  complain  of  it  1 

A.  After  a  while  the  bag  got  very  hot ; 
whoever  was  the  officer  I  don't  know,  I  told 
him  I  was  smothering,  I  could  not  breathe  ; 
he  came  back  with  the  order  that  I  could 
not  have  it  untied^  I  turned  myself  round 
as  well  as  I  could,  and  got  my  mouth  to  the 
opening  of  the  bag  and  stayed  so  till  morning. 

M'Kinley  left  the  court. 

Captain  Ramsay  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows. 

As  Captain  Ramsay  had  business  the  ex- 
amination of  M'Kinley  was  for  a  time  sus- 
pended. 

BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  your  rank?  did 
you  command  the  Vandalia  on  her  last 
cruise  ? 

A.  William  Ramsay,  a  commander  in  the 
navy  ;  I  commanded  the  Vandalia  on  her 
last  cruse. 

Q.  Were  you  in  Porto  Praya  in  July 
last? 

A.  I  was,  and  sailed  thence  on  the  8th. 

Q.  Did  you  at  that  time  entertain  the  in- 
tention of  touching  at  St.  Thomas  on  your 
way  home  ? 

A.  1  did. 

Q.  Did  you  express  that  intention  to  the 
United  States  consul  at  Porto  Praya  ? 


A.  I  have  no  distinct  recollection  of  hav- 
ing said  so  ;  but  from  the  freedom  with 
which  I  informed  him  of  my  intended 
movements,  it  is  probable  I  did. 

The  testimony  of  Captain  Ramsay  was 
here  closed ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

M'Kinley  recalled. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Who  untied  the  bag  on  the  next 
morning  ? 

A.  I  think  it  was  Sergeant  Garty  who 
was  standing  by  when  I  got  out ;  I  could 
not  see  who  untied  it. 

Q.  Was  any  others  by  ? 

A.  Not  that  I  recollect? 

Q.  Can  you  recollect  if  any  others  were 
by  when  it  was  put  on? 

A.  That  night  Sergeant  Garty  and,  I 
think,  Rogers  ;  I  can  not  say  for  certain  ; 
some  one  was  there,  and  it  strikes  me  it 
was  him. 

Q.  Did  you  ever  hear  of  any  proposal  or 
talk  of  rescue  after  the  arrest  ? 

A.  No,  sir;  I  did  not. 

Q.  Did  you  ever  hear  of  any  intended 
mutiny  till  the  26th  November. 

A.  I  never  heard  of  any  until  the  day 
that  Commander  Mackenzie  flogged  Wal- 
tham. 

BY  CAPTAIN    SLOAT. 

Q.  Where  were  you  born  ?  where  did 
you  reside  ?  and  what  had  been  your  occu- 
pation previous  to  entering  the  service  ? 

A.  I  was  born  in  Boston,  I  resided  there  ; 
my  occupation  was  in  general  a  waiter.  I 
have  waited  in  New  York  at  Howard's 
hotel  just  before  my  enlistment. 

Q.  Have  you  been  spoken  to  by  the 
judge  advocate  as  to  your  evidence,  if  so, 
how  often  ? 

A.  I  have  once. 

CROSS-EXAMINED     BY     COMD*R.     MACKENZIE. 

Q.  The  night  before  the  departure  of  the 
Somers  from  New  York  on  her  last  cruise, 
did  you  say  to  John  Ford,  former  ward-room 
steward  of  the  Somers,  that  there  would  be 
a  mutiny  on  board  of  her ;  or  words  to  that 
effect.  Did  you  use  those  words  either  ou 
that  or  any  other  occasion  ? 

A.  Never. 

Q.  Before  you  were  punished  for  dis- 
obeying the  commander's  orders  at  Santa 


NAVAL  COURT  MARTIAL. 


183 


Cruz,  did  you  threaten  that  you  would  be 
revenged  on  the  commander  if  he  punished 
you  ?  and  after  you  were  punished  did  you 
again  repeat  your  threat  to  be  revenged  of 
the  commander? 

A.  Never. 

Q.  The  night  before  Mr.  Spencer  was  ar- 
rested did  you  have  any  conversation  with 
Wilson  between  two  guns  on  the  quarter- 
deck? 

A.  I  did ;  as  I  have  stated  to  the  court. 

Q.  Did  you  tell  Wilson,  "  He  has  just 
told  me  we  have  spies,  we  had  better  be 
careful,"  or  anything  of  that  kind  ? 

A.  I  do  not  recollect  anything  of  the 
kind. 

Q.  Did  Wilson  say,  "  He  need  not  fear 
me  ;  he  knows  I  have  been  in  too  many 
scrapes ;  I  go  straight  ahead  ;  I  never  look 
to  what  is  to  come  after;"  or  anything  of 
that  kind  ? 

A.  I  never  heard  Wilson  make  use  of 
any  such  expressions  or  anything  of  that 
kind. 

Q.  Did  you  ever  say  to  Wilson,  "  That  is 
too  much  the  case  with  myself,"  or  anything 
of  that  kind  ? 

A.  No,  sir ;  I  did  not. 

Q.  Did  you  say  to  Wilson,  "  Will  you 
join  ?"  or  words  to  that  effect ;  or  anything 
of  that  kind  ? 

A.  No,  sir ;  I  did  not. 

Q.  On  the  night  of  Mr.  Spencer's  arrest, 
had  you  any  conversation  with  Charles 
Abrahams  on  the  subject  of  Mr.  Spencer's 
arrest  ? 

A.  Yes,  sir. 

Q.  Did  Abrahams  ask  you  what  Mr. 
Spencer  was  in  irons  for  ? 

A.  Yes,  sir. 

Q.  Did  you  not  reply  to  Abrahams,  "  For 
trying  to  raise  a  mutiny,"  or  words  to  that 
effect  ? 

A.  No,  sir,  I  told  him  I  thought  it  was 
for  fighting  with  Mr.  Thompson. 

Q.  Did  Abrahams  say,  "  Who  is  so  mean 
as  to  help  him  ?"  or  anything  of  that  kind  ? 

A.  He  said  to  me,  "  I  wonder  who  would 
be  so  mean  as  to  tell  on  Mr.  Spencer  of  the 
fight  he  had  in  the  steerage." 

Q.  The  night  Mr.  Spencer  was  arrested, 
or  about  that  time,  did  you  say  to  Peter 
Fyson,  to  Browning,  or  any  one  else,  "  I 
am  sick — I  expect  to  be  in  irons  myself 
before  a  week,"  or  words  to  that  effect  ? 

A.  I  said,  after  Mr.  Spencer,  Cromwell, 


and  Small,  were  arrested,  and  I  saw  Mr. 
Gansevoort  watching,  chasing,  and  follow- 
ing me  all  round  the  vessel,  to  Browning 
and  the  rest  of  my  messmates,  that  I  ex- 
pected to  be  put  in  irons  before  a  week. 

Q.  When  Waltham  offered  you  the  three 
bottles  of  wine  in  the  wardroom  locker,  what 
did  he  ask  you  to  do  for  him  in  return  for 
this  favor  ? 

A.  Nothing  whatever. 

Q.  Did  the  commander  say  to  you,  in  the 
conversation  he  had  with  you  immediately 
after  the  execution,  that  he  had  gone  be- 
yond his  authority  in  keeping  you  on  board 
the  Somers  after  you  had  ceased  to  be  the 
first  lieutenant's  boy,  as  you  were  not  an 
apprentice,  and  that  the  commander  had 
done  this  at  your  earnest  request,  through 
Lieutenant  Gansevoort,  and  because  the 
commander  liked  you  for  your  courage  and 
alacrity  in  saving  a  boy  that  had  fallen  over- 
board in  New  York,  and  because  he  thought 
he  could  make  something  of  you  ? 

A.  No,  sir,  I  do  not  recollect  it ;  before 
we  left  New  York,  the  commander  sent  the 
wardroom  steward  away  ;  the  first  lieutenant 
-told  me  he  did  not  want  me  to  leave  the 
brig,  and  that  he  did  not  want  me  to  be 
wardroom-boy  any  longer  ;  Lieutenant  Gan- 
sevoort said  that  Commander  Mackenzie 
told  him  that  I  would  make  a  better  sailor 
than  waiter,  and  for  that  reason  he  would 
keep  me  on  deck  ;  the  commander  did  not 
mention  the  boy's  name  after  the  execution, 
but  alluded  to  my  saving  the  life  of  another 
boy  by  risking  my  own,  referring  to  the  boy 
who  fell  overboard. 

Q.  Did  the  commander  then  go  on  to  tell 
you  that  he  had  treated  you  kindly — that  ho 
had  given  you  an  opportunity  to  improve 
yourself  in  your  profession  and  in  your  edu- 
cation, and  that  in  return  for  these  benefits 
that  you  had  joined  in  a  plot  to  take  his  life,  to 
deprive  him  of  his  command,  and  to  dishonor 
him  as  an  officer  ? 

A.  He  never  said  anything  of  that  kind 
to  me. 

Q.  When  this  conversation  took  place 
with  the  commander,  did  you  burst  into 
tears — did  you  sob  ? 

A.  He  told  me  he  could  find  nothing 
against  me,  and  when  he  said  that,  I  burst 
into  tears. 

Q.  When  in  the  gulf,  approaching  the 
coast,  who  was  it  that  noticed  that  the  rain 
was  dripping  on  you  from  the  foot  of  the 


184 


PROCEEDINGS  OF  THE 


main  try-sail,  and  bad  you  removed  to  wind- 
ward, and  placed  under  the  lee  of  the  round- 
house ? 

A.  I  could  not  tell  who  noticed  it ;  Com- 
mander Mackenzie  had  me  removed  ;  no 
other  officer  dare  do  such  a  thing. 

BY    CAPTAIN'    OGDEN. 

Q.  Have  you  ever  stated  to  any  one, 
since  your  release  from  the  naval  service, 
that  when  the  order  was  given  to  haul  on 
the  main  royal-brace,  Small  got  up  from  a 
gun-slide  (where  he  had  been  sitting  sew- 
ing on  his  clothes),  hauled  on  the  brace, 
and  then  sat  down  again  ?  If  so,  state  to 
whom,  and  when. 

A.  I  do  not  recollect  of  ever  stating  any- 
thing of  the  kind. 

BX    CAPTAIN    SHUBRICK. 

Q.  After  swaying  up  the  top-gallant  mast, 
where  did  you  go  to  ? 

A.  1  went  between  the  foremast  and 
mainmast,  to  help  to  send  on  the  top-gallant 
sail,  and  then  went  aft  to  help  to  sway  the 
yard  aloft. 

BY  COMMODORE     DOWNES. 

Q.  Was  the  bag  drawn  over  your  head 
except  on  the  one  night  that  you  have  men- 
tioned? 

A.  No,  sir,  it  was  not. 

Q.  Did  you  find  the  bag  comfortable 
when  not  tied  over  your  head  ? 

A.  No,  sir  ;  it  was  warm  weather — it 
was  uncomfortable  ;  on  the  coast,  they 
would  get  full  of  rain-water,  nearly  up  to 
my  knees  ;  when  I  say  Mr.  Gansevoort 
was  chasing  me  round,  I  mean  he  was  fol- 
lowing my  motions  and  watching  me. 

The  testimony  of  Daniel  M'Kinley  was 
here  suspended  ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  Monday, 
March  13,  at  half-past  10  o'clock,  A.  M. 


NAVY  YARD,  > 

Brooklyn,  March  13,  1843.  $ 

The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 


Captain  Downes,     Captain  McKeever, 

Read,  "        Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

On  a  motion  of  Captain  Bolton,  the  court 
was  cleared,  and  on  opening  it,  the  examin- 
ation was  continued. 

Lieutenant  Gansevoort  recalled. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Before  the  commander  went  to  an- 
nounce to  Mr.  Spencer  his  doom,  did  you 
observe  them  the  day  of  execution  at  all  in 
conversation  ? 

A.  I  don't  recollect  to  have  seen  him  in 
conversation  ? 

Q.  What  was  the  position  of  Mr.  Spencer 
when  the  commander  went  to  him  on  that 
day? 

A.  Sitting  on  a  camp-stool  at  the  for- 
ward part  of  the  arm-chest ;  I  don't  recol- 
lect that  I  saw  Mr.  Spencer  when  the  com- 
mander first  went  to  him. 

Q.  Where  wrere  you  standing  ? 

A.  WThen  I  first  came  up  from  below,  I 
think  the  commander  was  standing  near 
Mr.  Spencer;  I  was  not  long  near  them. 

Q.  \Vhat  was  Mr.  Spencer's  position 
whenever  you  saw  him,  till  he  started  for 
the  gangway  ?  Was  he  still  on  the  camp- 
stool  ? 

A.  I  recollect  his  once  sitting  on  the  edge 
of  the  camp-stool,  his  body  leaning  over  the 
arm-chest ;  I  do  not  recollect  to  have  seen 
him  off  the  camp-stool. 

Q.  Did  you  hear  the  commander  order 
pen  and  paper  ? 

A.  I  don't  recollect  that  I  did — I  saw 
hi;n  with  pen  and  paper. 

Q.  How  near  were  you  when  you  saw 
him  with  pen  and  paper  ? 

A.  I  was  on  the  quarter-deck,  abaft  the 
mainmast. 

Q.  Was  you  nearer  than  M'Kinley  was 
to  them  ? 

A.  For  a  short  time  at  the  first  I  think  I 
was. 


NAVAL  COURT  MARTIAL. 


185 


Q.  How  long  did  the  writing  continue  ? 

A.  I  don't  recollect — I  was  not  present 
during  the  whole  time. 

Q.  Did  you  hear  Captain  Mackenzie  ask 
Spencer  if  he  wished  to  write  ? 

A.  No,  sir  ;  I  think  I  have  repeated  in 
my  former  examination  all  the  conversation 
I  had  at  that  time. 

Q.  Did  Commander  Mackenzie  tell  you, 
before  your  arrival  at  St.  Thomas,  whether 
Mr.  Spencer  sent  a  written  message  by  him 
to  his  friends  or  any  one  of  them  ? 

A.  No,  sir,  not  that  I  recollect  \  my  im- 
pression is  that  I  understood  that  he  did  not 
send  any  written  message. 

Q.  Did  you  hear  Captain  Mackenzie's 
address  to  the  crew  after  the  execution  ? 

A.  I  believe  I  heard  all  the  address  he 
made. 

Q.  Did  the  commander  signify  in  either 
of  his  addresses  that  Mr.  Spencer  had  been 
telling  him  lies  for  half  an  hour  before  he 
died — that  he  died  with  lies  in  his  mouth, 
or  words  to  that  effect  ? 

A.  No,  sir,  I  have  no  recollection  of  it. 

Q.  Did  Mr.  Spencer  tell  you  in  any  of 
his  conversations  with  you,  that  he  had  no 
thought  of  mutiny — that  it  was  a  mere 
foolish  talk. 

A.  I  don't  recollect  of  any  such  conver- 
sation ;  I  have  repeated  all  that  I  have  had. 

Q.  Did  Mr.  Spencer  tell  you  that  there 
were  names  on  that  list  he  had  not  spoken  to  ? 

A .  I  don't  recollect,  he  may  have  done  so. 

Q.  Did  he  not  tell  you  he  had  not  spoken 
to  any  but  Small  and  Wales  1 

A.  I  have  no  recollection  of  a  remark 
of  that  sort. 

Q.  When  did  you  first  hear  a  written 
message  had  been  sent  by  Mr.  Spencer  to  his 
friends  or  any  one  of  them? 

A.  I  did  not  hear  it  all,  I  have  not  heard  it. 

The  testimony  of  Lieutenant  Gansevoort 
was  here  closed  ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

Midshipman  Thompson  was  then  called, 
and  being  duly  sworn  by  the  president  of 
the  court,  testified  as  follows  : — 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

What  is  your  name  ?  age  ?  rank  ?  were 
you  aboard  the  Somers  in  her  last  cruise  ? 

A.  My  name  Egbert  Thompson,  my  age 
twenty-one  ;  I  was  on  board  of  the  Somers 
in  her  last  cruise  as  midshipman. 

Q.  How  near  were  you  to  the  comman- 
24 


der  and  Mr.  Spencer  when  Small  was  called 
aft,  on  the  day  of  the  arrest  of  Mr.  Spen- 
cer? 

A.  I  suppose  I  was  five  feet  from  him. 

Q.  Give  the  conversation  between  Small 
and  the  commander. 

A.  I  don't  recollect  it,  excepting  that 
the  commander  asked  him  if  he  had  been 
spoken  to  by  Mr.  Spencer ;  that  was  the 
amount  of  it. 

Q.  What  did  Small  reply? 

A.  I  don't  recollect  it ;  I  think  he  admit- 
ted that  Mr.  Spencer  spoke  to  him  about 
the  affair. 

Q.  Did  not  Small  say,  "  I'm  in  no  mu- 
tiny, sir,  I  only  had  a  foolish  conversation 
with  him,"  or  words  to  that  effect  ? 

A.  He  admitted  that  Mr.  Spencer  had 
spoken  to  him  about  the  affair,  but  did  not 
say  he  was  "  in  no  mutiny,"  or  "  had  only 
a  foolish  conversation,"  to  my  knowledge. 

Q.  Was  this  the  first  answer  to  the  com- 
mander that  Small  made  ? 

A.  I  don't  recollect ;  that  is  the  amount 
of  all  the  remark  I  recollect  hearing  him 
make. 

Q.  Do  you,  mean  to  say  that  Small  did 
not  say  anything  else,  or  that  you  don't 
recollect  to  have  heard  him  say  anything 
else  ? 

A.  I  don't  recollect  his  saying  anything 
else  ;  he  appeared  much  embarrassed  at  the 
time. 

Q.  Did  he  seem  desirous  that  nothing 
should  be  done  with  him  by  the  comman- 
der? 

A.  I  don't  know  ;  he  appeared  much  em- 
barrassed, but  did  not  defend  Mr.  Spencer ; 
he  replied  to  Commander  Mackenzie's 
question. 

Q.  Did  you  hear  anything  said  about  Mr. 
Spencer's  being  half  crazy  or  childish,  or 
anything  like  that  ? 

A.  No,  sir. 

Q.  What  did  the  commander  say  when 
he  dismissed  Small? 

A.  I  don't  recollect  of  hearing  him  say 
anything. 

Q.  Can  you  recollect  Small's  words  ? 

A.  No,  sir. 

Q.  Was  not  your  attention  alive  to  what 
was  going  on  ? 

A.  Yes,  sir. 

Q.  Don't  you  recollect  what  passed  be- 
tween Mr.  Spencer  and  the  commander 
then? 


186 


PROCEEDINGS  OF  THE 


A.  I  recollect  some  of  the  circumstan- 
ces, but  not  others  ;  there  are  many  things 
which  other  officers  heard,  which  I  did  not. 

Q.  Where  were  you  when  the  comman- 
der announced  to  the  prisoners  their  doom  ? 

A.  Aft  on  the  quarter-deck,  between  the 
binnacles,  near  the  wheel. 

Q.  How  far  from  Mr.  Spencer  ? 

A.  About  eight  feet. 

Q.  Before  that,  on  that  day,  had  you 
seen  Mr.  Spencer  in  conversation  with  the 
commander  ? 

A.  No,  sir. 

Q.  Had  you  been  on  deck  most  of  the 
day? 

A.  I  was  on  deck  a  number  of  times  du- 
ring the  day. 

Q.  Did  you  see  the  commander  come  out 
of  his  cabin  when  he  went  to  announce  their 
doom  ? 

A.  Yes,  sir. 

Q.  What  was  Mr.  Spencer's  position  at 
the  time  ? 

A.  He  was  sitting  on  a  camp-stool  for- 
ward of  the  arm-chest,  on  the  larboard 
Bide. 

Q.  What  did  the  commander  say  to  him  ? 

A.  I  don't  recollect,  I  heard  him  say 
something  about  ten  minutes ;  what  was 
said  before,  I  don't  recollect. 

Q.  What  did  Mr.  Spencer  reply  ? 

A .  I  did  not  hear  him  make  any. 

Q.  What  did  Mr.  Spencer  do? 

A.  He  appeared  somewhat  agitated,  I 
think  replied  ;  what  he  said  I  did  not  hear. 

Q.  What  did  the  commander  do  then  ? 

A.  Went  over  to  the  starboard  side  and 
spoke  to  Cromwell  or  Small,  I  don't  recol- 
lect which,  I  think  Cromwell. 

Q.  To  this  time  from  the  first,  was  Mr. 
Spencer  still  on  the  camp-stool  ? 

A.  Yes,  sir ;   I  think  so. 

Q.  Was  he  in  tears  ? 

A.  I  don't  recollect;  I  think  not. 

Q.  Did  you  see  the  commander  approach 
him  afterward  ? 

A.  Yes,  sir. 

Q.  What  passed  ? 

A.  The  commander  spoke  to  him  ;  what 
he  said  I  did  not  hear  ;  he  afterward  ordered 
up  a  camp-stool  by  Dunn,  and  some  paper; 
sat  down  by  the  arm-chest  and  wrote. 

Q.  Was  Mr.  Spencer's  face  then  toward 
you  ? 

A.  I  could  see  his  face. 

Q.  Seeing  his  face,  what  did  you  judge 


was  passing  between  him  and  the  comman- 
der? 

A.  The  commander  was  writing  some 
of  the  time,  and  conversing  with  Mr.  Spen- 
cer some  of  the  time. 

Q.  Would  Captain  Mackenzie  raise  his 
head,  seem  to  listen,  and  write  ? 

Objection  being  taken  by  the  accused  to 
this  question,  as  leading  to  an  unnecessary 
and  irrelevant  examination.  The  court  was 
cleared,  and  on  the  opening  thereof,  the 
judge  advocate  announced  that  the  court 
had  decided  that  the  question  should  be  put. 

.A.  No,  sir ;  I  think  riot  now  at  the  time  ; 
I  did  not  notice  it  particularly. 

Q.  Did  the  commander  address  to  you 
any  observation  when  he  commenced  to 
write  ? 

A.  Not  that  I  recollect.  Ah,  yes  ;  after 
he  had  spoken  to  the  others,  he  told  Mr.  O. 
H.  Perry,  I  think,  to  note  the  time  ;  Mr. 
Perry  and  myself  both  noted  it. 

Q.  Did  you  report  the  end  of  the  time  ? 

A.  I  think  I  did.  It  is  so  long  since  these 
things  occurred,  that  it  is  impossible  to  re- 
member these  trivial  things,  such  as  the 
way  Mr.  Spencer  held  his  head  or  hands. 

Q.  Do  you  regard  it  as  a  trivial  thing  to 
report  the  expiration  of  ten  minutes,  which 
were  the  limits  of  Mr.  Spencer's  life  ? 

A.  I  did  not  say  that  was  a  trivial  thing; 
my  remark  referred  to  some  trivial  ques- 
tions which  you  have  put  to  me  ;  my  an- 
swer is  by  no  means. 

Q.  What  was  the  commander  about  when 
you  reported  to  him  the  end  of  the  time  ? 

A.  He  was  sitting  beside  Mr.  Spencer, 
at  the  arm-chest ;  he  was  employed  with 
Mr.  Spencer  ;  I  don't  recollect  whether  he 
was  writing  or  conversing  with  him. 

Q.  What  did  the  commander  then  say  to 
you? 

A.  I  don't  recollect;  my  impression  is, 
that  the  amount  of  what  he  said  was,  "  Very 
good ;"  he  heard  me. 

Q.  Did  he  not  tell  you  Mr.  Spencer  "is 
writing  home,  or  sending  a  message  to  his 
friends,"  or  words  to  that  effect  ? 

A.  Not  that  I  recollect  of;  I  think  not. 

Q.  On  such  a  matter  can't  you  be  pos- 
itive ? 

A.   My  impression  is,  that  he  did  not. 

Q.  How  long  did  the  writing  continue 
after  this  ? 

A.  I  don't  recollect ;  my  impression  is, 
not  long,  about  twenty  minutes. 


NAVAL  COURT  MARTIAL. 


187 


Q.  Did  you  see  the  commander  read 
what  he  had  written  to  Mr.  Spencer? 

A.  I  don'i  recollect  seeing  him. 

Q.  Did  you  see  Mr.  Spencer  in  tears 
that  day  ?  and  if  so,  when  ? 

A.  I  don't  recollect  seeing  him  in  tears  ; 
I  saw  him  much  agitated. 

Q.  Did  he  not  fall  on  his  knees  ? 

A,  I  don't  recollect. 

Q.  Are  you  not  positive  that  he  was  on 
the  camp-stool  from  the  time  the  comman- 
der announced  to  him  his  fate,  till  Mr.  Gan- 
sevoort  came  to  take  him  forward  ? 

A.  No,  sir ;  I  am  not  positive  of  it. 

Q.  Can  you  remember  of  his  being  out 
of  the  camp-stool  during  that  time  ? 

A.  No,  sir ;  I  can  not  swear  whether  he 
was  out  of  it,  or  not ;  my  impression  is,  he 
was  not. 

Q.  Were  you  in  tears  1 

A.  I  was  when  I  spoke  to  Mr.  Spencer. 

Q.  What  passed  between  you  and  Mr. 
Spencer  ? 

A.  I  bid  him  farewell — told  him  I  had 
no  ill-feelings  toward  him  ;  he  bid  me  good- 
by,  and  told  me  to  take  warning  by  his  fate 
— then  asked  for  Mr.  Rogers.  I  told  him 
I  would  call  him  ;  went  away  for  that  pur- 
pose ;  it  slipped  my  memory,  I  having  the 
deck  at  that  time,  and  looking  out  for  the 
vessel. 

Q.   Have  you  a  bad  memory  ? 

A.  I  can't  say  I  have  a  good  one. 

Q.  Did  you  tell  before  the  court  of  inqui- 
ry, as  to  this  remark  of  Mr.  Spencer  when 
he  was  taking  leave  of  you? 

A.  No,  sir;  it  was  not  asked  of  me. 

Q.  Refresh  your  recollection,  and  see  if 
you  did  not  state  before  the  court  of  inqui- 
ry, that  you  "  did  not  hear  Mr.  Spencer  say 
anything  from  the  time  of  his  arrest  to  his 
execution  ?" 

A.  I  don't  recollect  whether  I  said  so 
before  the  court  of  inquiry  or  not,  but  did 
state  before  the  court  of  inquiry  what  I 
have  just  stated ;  Mr.  Spencer  never  said 
anything  about  the  mutiny. 

Q.  Don't  this  remark  so  appear  in  your 
answer  before  the  court  of  inquiry  ? 

A.  Yes,  sir  ;  at  the  time  I  answered  that 
question  in  that  way,  I  probably  did  not  un- 
derstand it  to  have  reference  to  Mr.  Spen- 
cer's remark. 

Q.  Would  you  not  think  the  inculcation, 
"  Take  warning  by  my  example,"  an  im- 
portant thing  to  remember  ? 


A.  Yes,  sir  ;  more  so,  if  the  warning  had 
been  given  by  a  more  elderly  person.  Mr. 
Spencer's  warning  was  sincere. 

Q.  How  do  you  know  it  was  sincere  ? 

A.  I  don't  think  a  man  in  his  circum- 
stances would  make  light  of  such  a  matter ; 
his  manner  also  was  very  sincere  ;  he  shook 
me  very  sincerely  by  the  hand  in  both 
of  his. 

Q.  Why  then  did  you  not  tell  of  it  before 
the  court  of  inquiry  1 

A.  My  attention  was  not  drawn  to  it. 

Q.  If  these  circumstances  of  Mr.  Spen- 
cer were  so  serious,  why  did  you  let  slip 
from  your  memory  his  dying  request  to  see 
Mr.  Rogers  ? 

A.  Because  I  was  officer  of  the  deck  at 
the  time,  and  was  attending  to  the  steerage 
of  the  vessel,  &c.,  &c. ;  Mr.  Rogers  was 
stationed  forward,  and  I  aft,  which  station 
I  could  not  leave. 

Q.  Could  you  not  have  told  some  one  1 

A.  I  could,  but  it  slipped  my  memory; 
the  three  prisoners  and  Mr.  O.  II.  Perry 
were  abaft,  and,  in  attending  to  other  things, 
it  slipped  my  memory. 

Q.  Why  did  you  not  send  Mr.  Perry? 

A.  Because  I  should  not  have  sent  him, 
if  I  had  thought  of  it ;  every  officer  had 
his  station,  and  was  expected  not  to  lea,ve 
it ;  I  should  not  have  left  mine  on  any  ac- 
count ;  the  commander  expected  everybody 
to  obey  his  orders. 

Q.  Could  you  not,  without  raising  your 
tone  particularly,  have  told  this  request  of 
Mr.  Spencer  to  Mr.  Gansevoort,  or  the  com- 
mander? 

A.  They  were  forward  ;  they  may  have 
come  aft,  and,  if  I  had  thought  of  it,  I 
should  have  mentioned  it  to  the  command- 
er, who  would  have  sent  for  Mr.  Rogers  ; 
had  he  known  of  my  neglect,  he,  no  doubt, 
would  have  reprimanded  me. 

Q.  How  long  a  time  passed,  from  the 
time  of  the  declaration  about  ten  minutes, 
till  Mr.  Spencer  and  the  commander  ceased 
their  interview? 

A.  I  can't  tell ;  I  don't  recollect ;  it  was 
not  long;  about  fifteen  minutes.  I  can't 
tell  distinctly — it  was  longer  ;  a  short  time 
after  Commander  Mackenzie  left  Mr.  Spen- 
cer he  was  taken  forward ;  I  suppose  it 
was  twenty  minutes. 

Q.  Had  you  had  a  recent  quarrel  with 
Mr.  Spencer  ? 

A.  Yes,  sir  ;  a  personal  altercation. 


188 


PROCEEDINGS   OF  THE 


Q.  Did  it  result  in  a  fight? 

A.  It  resulted  in  a  scuffle;  he  struck  at 
me,  I  warded  off  the  blow,  slapped  him  with 
my  hand,  then  threw  him  down  ;  the  1st 
lieutenant  came  in,  and  ordered  me  to  de- 
sist;  it  was  afterward  made  up  by  the  1st 
lieutenant,  and  we  were  good  friends. 

Q.  You  are  small,  could  you  manage  him 
so  easily  ? 

A.  I  pitched  into  him  before  he  knew  it. 

Q.   How  long  was  this  before  the  arrest? 

A.  Between  Santa  Cruz  and  the  coast 
of  Africa ;  it  was  some  time  before  the  ar- 
rest. 

Q.  When  did  you  first  hear  of  the  inten- 
tion to  inter  the  dead  by  lantern-light  ? 

A.  The  first  I  heard,  that  the  interment 
was  to  take  place  by  candle-light,  was  when 
all  hands  were  called ;  the  interment  took 
place  when  all  w.as  ready. 

Q.  At  what  time  were  they  run  np  ? 

A.  About  one  o'clock,  I  believe. 

Q.  Did  you  fear  anything  from  the  dis- 
affected, by  this  scene  occurring  by  lantern- 
light  ? 

A.  I  thought  there  was  still  a  chance  of 
their  rising  ;  though  I  was  under  no  great 
apprehension,  as  the  ringleaders  were  cut 
off. 

Q.  Did  you  see  Mr.  Spencer  on  his 
knees,  on  the  day  of  execution  ? 

A .  No,  sir  ;  not  to  my  knowledge. 

CROSS-EXAMINED     BY    COMMANDER    MACKEN- 
ZIE. 

Q.  What  was  the  manner  of  Cromwell 
one  afternoon  in  your  watch,  and  shortly 
before  Mr.  Spencer's  arrest,  when  Crom- 
well was  called  aft,  about  some  unseaman- 
like  conduct  in  shifting  the  maintop-gallant 
yard  end  for  end  ? 

A.  Very  suspicious  indeed;  it  was  my 
deck  at  the  time,  I  sent  for  him  about  some 
duty  ;  he  had  been  shifting  the  maintop- 
gallant-yard  rope  end  for  end  ;  he  turned 
the  hook  in  the  end,  without  unreaving  it 
aloft  from  the  leader  on  deck  ;  he  had  fin- 
ished it  about  eight  bells,  and  then  gone  to 
his  supper.  I  relieved  the  deck  at  four 
o'clock,  and  gave  orders  to  have  it  shifted, 
and  when  I  came  to  shift  it,  I  found  both 
ends  fast.  I  sent  for  him  to  speak  to  him 
about  it ;  he  came  aft ;  I  was  in  the  star- 
board gangway  ;  he  came  from  his  mess 
forward.  The  moment  he  saw  me,  which 
was  about  abreast  of  the  foremast,  he  fixed 


j  his  eyes  upon  me,  and  I  don't  think  he  took 
them  off  until  he  heard  what  I  wished  to 
see  him  for  ;  his  manner  was  determined, 
not  disrespectful ;  he  seemed  afraid  that  I 
was  going  to  speak  to  him  about  the  muti- 
ny, at  which  time  I  knew  nothing  of  it ;  his 
manner  was  not  insolent,  but  disrespectful ; 
he  did  not  touch  his  hat,  to  my  knowledge  ; 
as  soon  as  the  commander  spoke  to  him,  he 
appeared  relieved  ;  he  seemed  afraid  that  I 
was  going  to  reveal  something. 

Q.  What  was  the  manner  of  the  prison- 
ers, down  to  the  moment  when  preparations 
were  made  for  the  execution  ?  did  they 
seem  depressed,  or  anxious  1 

A.  No,  sir  ;  their  air  was  confident. 

Q.  What  was  the  condition  of  the  officers 
and  petty  officers,  as  to  physical  strength,  or 
exhaustion,  the  day  that  the  execution  took 
place  ? 

A.  Very  much  worn  down  ;  as  for  my- 
self, I  was  very  much  exhausted. 

Q.  Could  the  Somers,  in  your  judgment, 
have  been  brought  into  any  port,  if  the  exe- 
cution had  not  taken  place  ? 

A.  No,  sir  ;  she  could  not. 

The  testimony  of  Midshipman  Thomp- 
son here  closed  ;  his  evidence  was  read  to 
him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Tuesday),  March  14,  at  10  o'clock, 
A.  M. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March  14,  1843.  5 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 

Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members  ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

Commander  Alexander  Slidell  Macken* 
zie  sent  the  following  certificate,  which  was 
read  by  the  judge  advocate  : — 

"  NAVY  YARD,         3 
"  New  York,  March  14,  1843.  j 

"  SIR  :    I   do  hereby  certify  that  Com- 
|  mander  Mackenzie,  in  consequence  of  se- 


NAVAL  COURT  MARTIAL. 


189 


vere  indisposition,  will  be  unable  to  attend 
the  court  this  day. 

"  Very  respectfully, 

"  R.  W.  LEECOCK, 

"  P.  Assist.  Surg. 
"  To  Commodore  JOHN  DOWNES, 

"  President  of  the  Court" 

The  Court  then  adjourned  until  to-mor- 
row (Wednesday),  March  15,  at  10  o'clock, 
A.  M. 


U.  S.  NAVY  YARD, 
Brooklyn,  March  15,  1843. 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
Read,  "        Page,  . 

Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

Captain  Sloat,  Com'dr  Ogden, 

Storer,  "       Shubrick, 

Members  ; 

and  W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

Commander  Mackenzie  sent  the  follow- 
ing certificate,  which  was  read  by  the  judge 
advocate  : — 

"NAVY  YARD,  ) 

"New  York,  March  15,  1843.  \ 
"  SIR  :   I  hereby  certify  that  Commander 
Mackenzie,  in  consequence  of  his  continued 
indisposition,  will  be  unable  to  attend  court 
to  day.      Very  respectfully, 

"  R.  W.  LEECOCK, 
"P.  Assist.  Surg.  U.S.N. 
"To  Commodore  JOHN  DOWNES, 

"  President  of  the  Court." 

fc  The  Court  then  adjourned  until  to-mor- 
row (Thursday),  March  16,  at  10  o'clock, 
A.M. 


NAVY  YARD, 
Brooklyn,  March  16,  1843. 

..The  Court  met  this  day  in  pursuance  of 

Ijourament.     Present — 

Captain  Downes,     Captain  McKeever, 
Read,  "        Page, 

Bolton,  "        Gwinn, 

Turner,  "        Wyman, 

Sloat,  Com'dr  Ogden, 

Storer,  "        Shubrick, 

Members : 


and  W.  II.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

Commander  Mackenzie  sent  the  follow- 
ing certificate,  which  was  read  by  the  judge 
advocate  : — 

"  NAVY  YARD,          ) 
"  New  York,  March  16,  1843.  $ 
"  SIR  :  We  hereby  certify  that  Command- 
er Mackenzie,  in  consequence  of  his  con- 
tinued indisposition,  will  be  unable  to  attend 
the  court  to-day.     Very  respectfully, 
"  JOHN  HASLKTT, 

"  Surgeon  of  the  Yard. 
"R.  W.  LEECOCK, 
"  P.  Assist.  Surg.  U.  S.  N. 
"  To  Commodore  JOHN  DOWNES, 

"  President  of  the  Court." 

The  Court  then  adjourned  until  to-mor- 
row (Friday),  March  17,  at  10  o'clock, 
A.  M. 


Read, 

Bolton, 

Turner, 

Sloat, 

Storer, 


U.  S.  NAVY  YARD, 
Brooklyn,  March  17,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Page, 
"       Gwinn, 
"       Wyman, 
Com'dr  Ogden, 
"       Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  Monday,  the  13th,  and 
yesterday  were  read  and  approved. 
Mr.  O.  H.  Perry  recalled. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Were  you  engaged  in  noting  the  ten 
minutes  with  Mr.  Thompson,  which  the 
commander  stated  at  first  was  the  limit  of 
the  lives  of  the  executed  persons  after  the 
annunciation  of  their  doom  ? 

A.  Yes,  sir,  the  commander  told  me  to 
note  the  time  that  he  gave  the  prisoners, 
ten  minutes,  to  send  any  message  home  to 
their  friends.  Mr.  Thompson  arid  myself 
both  looked  out  for  the  time  ;  we  were  not 
positive  which  one  he  gave  the  orders  to. 

Q.  Were  you  by  Mr.  Thompson  at  the 
time  of  this  order  ? 


190 


PROCEEDINGS  OF  THE 


A.  I  was  within  a  few  feet  of  him. 

Q.  Did  the  commander  speak  out  the 
order  distinctly  ? 

A.  He  did  so  ;  I  could  comprehend  it. 

Q.  Where  was  the  commander  at  the 
time  of  the  order? 

A.  Speaking  to  Mr.  Spencer,  standing 
near  the  larboard  arm-chest. 

Q.  Was  it  after  this  he  sent  for  the  camp 
stool  and  paper  and  ink  ? 

A.  Yes,  sir. 

Q.  Did  you  see  the  face  of  Mr.  Spencer  ? 

A.  Yes,  sir. 

Q.  Was  he  in  tears  ? 

A.  I  don't  remember  that  he  was. 

Q.  Till  carried  forward  to  the  gangway, 
what  was  the  position  of  Mr.  Spencer  ? 

A.  When  first  told  of  his  doom,  he  got 
down  on  his  knees  for  half  a  minute,  and 
then  sat  down  on  the  camp  stool  again. 

Q.  Was  not  Mr.  Thompson  and  Lieuten- 
ant Gansevoort  by  him  when  his  doom  was 
first  told  him  ? 

A.  Mr.  Thompson  was,  I  am  not  positive 
whether  Mr.  Gansevoort  was  or  not. 

Q.  What  was  the  position  of  Mr.  Spen- 
cer from  that  time  till  he  started  to  the 
gangway  ? 

A,  He  was  sitting  on  a  camp  stool,  read- 
ing the  Bible  or  prayer-book,  I  don't  know 
which,  and  speaking  to  the  commander. 

Q.  Did  you  see  him  all  the  time  till  he 
started  to  the  gangway  ? 

A.  I  think  I  was  sent  forward  once  or 
twice  when  aft ;  I  kept  my  eye  on  all  of 
them,  not  on  Mr.  Spencer  particularly. 

Q.  Who  else  was  by  from  the  time  of 
the  announcement  of  his  doom  till  he  went 
forward  ? 

A.  Mr.  Thompson  was  the  only  one  I 
recollect. 

Q.  Was  not  Mr.  Heiskill  also  by  ? 

A.  I  don't  recollect  whether  he  was  or 
not. 

Q.  If  Mr.  Gansevoort,  Mr.  Thompson, 
and  M'Kinley,  were  to  tell  you  that  at  the 
time  of  the  announcement  of  his  doom  Mr. 
Spencer  remained  sitting  on  the  camp  stool, 
would  you  still  say  that  Mr.  Spencer  went 
on  his  knees  ? 

A.  Yes,  sir. 

Q.  Did  you  see  Mr.  Spencer  on  his 
knees  but  that  once  1 

A.  That  is  all. 

Q.  Did  you  take  leave  of  Mr.  Spencer  ? 

A.  No,  sir. 


Q.  Did  you  hear  him  ask  for  Mr.  Rogers  ? 

A.  No,  sir. 

Q.  Did  you  hear  what  passed  between 
the  commander  and  Mr.  Thompson,  when 
the  latter  went  to  report  the  expiration  of 
the  time  ? 

A.  No,  sir. 

Q.  What  did  Mr.  Thompson  say  when 
he  came  back  from  reporting  the  expiration 
of  the  time  1 

A.  I  did  not  know  that  he  had  reported  it. 

Q.  How  is  that?  were  you  not  noting  it 
together  ? 

A.  I  reported  it,  and  he  may  have  re- 
ported it,  too — he  says  he  did. 

Q.   What  passed  when  you  reported  it? 

A.  I  think  the  commander  said,  "  Very 
well :"  nothing  else  that  I  recollect  of. 

Q.  What  was  transpiring,  when  you 
went  to  report  it,  between  the  commander 
and  Mr.  Spencer  ? 

A.  I  don't  know. 

Q.  Did  you  relate  anything  of  this  wri- 
ting scene  between  the  commander  and  Mr. 
Spencer  to  the  court  of  inquiry  ? 

A.  I  don't  recollect  whether  it  was  asked 
me  or  not. 

Q.  Refresh  your  recollection  by  turning 
to  the  minutes  of  the  court  of  inquiry,  and 
see  whether  you  either  told  anything  of  this 
order  about  sending  messages  home,  or  of 
the  writing,  or  whether  you  was  asked  a 
single  question  about  either. 

A.  I  don't  see  anything  of  that  kind 
there. 

Q.  Turn  to  those  minutes  of  the  court 
of  inquiry,  and  see  whether  you  do  not 
there  state,  "  There  is  nothing  else  that  I 
now  recollect  which  I  have  not  stated  touch- 
ing this  inquiry." 

A.  I  referred  to  the  mutiny,  not  to  Mr. 
Spencer's  particular  actions  and  gestures. 

Q.  Did  you  not  consider  the  messages 
of  dying  men,  and  the  form  they  chose  to 
give  them,  an  important  concern  as  respects 
the  mutiny,  and  not  mere  gestures  and 
actions  ? 

This  question  was  objected  to,  and  the 
court  was  cleared  to  consider  it ;  on  the 
opening  thereof,  the  judge  advocate  stated 
that  the  court  had  refused  to  allow  the  ques- 
tion to  be  put. 

The  judge  advocate  then  read  the  follow- 
ing paper,  which  was  allowed  to  be  of 
record : — 

"  The  judge  advocate  thought  the   ques- 


NAVAL  COURT  MARTIAL. 


191 


tion  a  legal  one,  and  eminently  proper,  as 
the  witness,  in  answer  to  the  previous  two 
questions,  replied  that  the  scene  in  respect 
to  the  dying  messages  of  the  executed  per- 
sons was  a  mere  inquiry  into  *  gestures  and 
actions.'  " 

Q.  How  long  was  Mr.  Spencer  and  the 
commander  engaged  together  with  the  pa- 
per before  them  ? 

A.  About  ten  or  fifteen  minutes,  I  sup- 
pose. 

Q.  How  long  a  time  did  the  commander 
pass  with  Cromwell  and  Small  after  he 
first  left  Mr.  Spencer? 

A.  Not  very  long  ;  all  the  time  he  passed 
with  Cromwell  and  Small,  I  should  judge, 
was  five  minutes  ;  I  don't  recollect  whether 
he  returned  to  Mr.  Spencer  or  riot. 

Q.  Did  you  hear  Mr.  Spencer  say  to  the 
commander,  "  These  are  the  last  words  I 
have  to  say,  I  trust  they  may  be  believed — 
Cromwell  is  innocent"  ? 

A.  I  don't  recollect  hearing  them. 

Q.  How  far  were  you  from  Mr.  Spencer 
and  the  commander  ? 

A.   About  five  feet. 

Q.  How  far  were  you  from  Mr.  Spencer 
and  the  commander  at  the  time  of  his  ar- 
rest ? 

A.  About  five  or  six  feet,  I  suppose. 

Q.  Allow  me  to  ask  you  again  if  you  did 
not  admit,  in  the  presence  of  the  secretary 
of  the  navy  and  other  gentlemen,  that  Mr. 
Spencer  did  send  a  written  message  to  his 
friends  ? 

.A.  I  told  the  secretary  of  the  navy  that 
I  was  under  the  impression  that  Comman- 
der Mackenzie  copied  a  letter  from  Mr. 
Spencer  to  his  friends  ;  what  I  mean,  is, 
that  Mr.  Spencer  dictated  a  letter,  and  the 
commander  wrote :  that  was  my  impression. 

CROSS-EXAMINED     BY     COMD*R.    MACKENZIE. 

Q.  Was  your  impression  derived  from 
any  other  cause  than  seeing  Commander 
Mackenzie  sitting  writing  by  Mr.  Spencer? 

A.  That  is  all. 

Q.  Have  you  ever  at  any  time  been  ques- 
tioned by  any  one,  except  before  this  court 
by  the  judge  advocate,  as  to  what  you  re- 
membered of  the  transaction  in  regard  to 
which  you  have  just  been  examined  by  him  ? 

A.  No,  sir. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  not  the  order  to  note  the  time  for 


the  prisoners  to  send  messages  to  their 
friends,  make  one  of  the  reasons  in  your 
mind  for  thinking  that  Mr.  Spencer  was 
sending  a  letter  ? 

A.  No,  sir. 

Commander  Mackenzie  then  submitted 
the  following  paper,  which  was  read  by  his 
counsel : — 

"  MAY  IT  PLEASE  THE  COURT  :  Com- 
mander  Mackenzie  has  not  hitherto  pro- 
duced the  memorandum  taken  down  by  him 
during  his  late  conversation  with  Mr.  Spen- 
cer, simply  because  its  substance  was  al- 
ready incorporated  in  his  official  report,  and 
because  he  considered  any  further  inquiry 
into  the  subject  not  merely  irrelevant,  but 
entirely  immaterial. 

"  The  memorandum  was  hastily  and  rough- 
ly written,  and  did  not  in  fact  detail  the  con- 
versation with  as  much  fulness  as  it  is  given 
in  his  report. 

"  But,  as  the  judge  advocate  has  already 
occupied  much  time  in  endeavoring  to  as- 
certain whether  a  letter  or  a  mere  message 
was  dictated  by  Mr.  Spencer,  and  has  at 
length  declared  a  belief  that  a  letter  was 
written  by  Commander  Mackenzie,  for  Mr. 
Spencer,  which  has  never  been  delivered — 
a  letter,  too,  containing  protestations  of  in- 
nocence !  Commander  Mackenzie,  for  the 
purpose  of  completely  refuting  his  gratu- 
itous and  offensive  assumption,  and  to  put 
an  end,  if  possible,  to  the  interminable  con- 
sumption of  time,  desires  to  submit  to  the 
court  the  paper  hereto  annexed,  marked  A., 
as  the  identical  memorandum  taken  down 
by  him  during  his  last  conversation  with 
Mr.  Spencer. 

"  The  charge  made  by  the  judge  advocate, 
utterly  unfounded  as  it  is,  flatly  contradicted 
by  every  fact  that  has  yet  appeared,  and  to- 
tally unconnected  with  the  issue  now  on 
trial,  is  only  serious  so  far  as  it  tends  to 
mislead  the  minds  of  the  court  and  the  pub- 
lic ;  and  in  this  respect  only  is  it  desirable 
to  refute  it,  if  indeed  it  is  proper  to  speak  of 
refuting  an  accusation  which  is  supported 
by  no  evidence  whatever. 

"  Commander  Mackenzie  could  not  anti- 
cipate that  any  objection  would  be  made  to 
the  introduction  of  the  paper  which  he  now 
offers.  The  examination  on  this  subject 
was  commenced  by  the  judge  advocate. 
What  good  reason  can  be  assigned  for  his 
hesitating  to  receive  the  paper  of  which 


192 


PROCEEDINGS  OF  THE 


he  has  himself  sought  to  compel  the  pro- 
duction ?  The  evidence  of  the  party  him- 
self is  constantly  received  for  the  purpose  of 
proving  the  loss  of  writing,  in  order  to  ad- 
mit parol  evidence  of  their  conduct,  and  this 
done  because,  from  the  nature  of  the  case, 
no  other  or  better  evidence  can  be  had.  In 
this  view,  we  now  propose  to  prove,  by 
Commander  Mackenzie  himself,  that  the 
memorandum  herewith  affixed  is  the  one 
written  by  him  at  the  instance  of  Mr,  Spen- 
cer, and  is  the  only  one  which  was  made 
by  him  at  that  time.  His  affidavit  to  that 
effect  is  annexed  to  the  paper,  and  he  will 
submit  to  examination  himself,  if  so  directed 
by  the  court.  As  a  matter  of  abstract  right, 
this  we  apprehend  should  ia  any  case  be 
granted.  The  rule  permitting  parties  to 
testify,  is  one  growing  out  of  the  exigencies 
of  the  case,  and  which  originates  in  that 
principle  of  the  law  which  always  admits 
secondary  evidence  when,  from  the  nature 
of  events,  primary  evidence  is  unattainable. 

"  If  Lieutenant  Gansevoort  were  now  on 
his  trial,  this  paper  identified  by  Commander 
Mackenzie,  would  be  evidence  of  the  very 
highest  character.  It  is  not  only  the  con- 
fession, but  the  dying  declaration,  of  the 
most  guilty  mutineer.  The  only  witness  to 
the  transaction,  Mr.  Spencer,  is  dead,  and 
every  reason  concurs  to  permit  the  intro- 
duction of  a  paper  in  regard  to  which,  from 
the  necessary  privacy  of  the  interview,  no 
other  person  could  have  any  knowledge. 
But  if  the  admission  of  this  paper  be  not 
justified  upon  strict  legal  principles,  it  is  a 
matter  of  the  most  peremptory  and  absolute 
justice  in  this  particular  case.  This  appli- 
cation is  addressed  to  the  sound  discretion 
of  the  court,  and  that,  discretion  is  to  be 
regulated  by  their  sense  of  the  justice  and 
propriety  of  the  modern  The  judge  advo- 
cate has  himself  opened  the  subject :  he 
has  himself  put  question  after  question,  and 
consumed  hour  after  hour,  in  endeavoring 
to  ascertain  the  existence  and  contents  of 
the  paper. 

"  Shall  he  now  be  permitted,  when  the 
paper  itself  is  produced,  to  offer  opposition 
to  its  introduction  ?  Such  a  course  is  as 
manifestly  inconsistent,  with  the  impartiality 
of  public  justice,  as  it  is  incompatible  with 
that  object  to  which  an  examination  of  evi- 
dence should  be  directed,  the  attainment  of 
truth. 

"It  is  altogether  intolerable  that  a  public 


prosecutor  should  be  permitted  to  introduce 
matters  wholly  irrelevant,  virtually  to  pro-   1 
tluce  additional  charges  of  the  most  galling    .; 
character,  and  when  the  accused  offers  a 
complete    rebuttal  of  the   new   allegations  1 
made  against  him,  take  shelter  under  some 
rigid  rule  of  law,  and  deny  all  remedy  for 
the  evil  which  he  himself  has  caused.     This 
is  not  the  act  of  an  ordinary  prosecutor,  de- 
sirous only  to  elicit  the  truth,  and  to  leave    < 
the  judgment  to  that  arbitrament  to  which 
it  belongs ;  it  bears  the  marks  of  a  relentless 
spirit,  bentupon  conviction,  although  attended 
by  the  sacrifice  of  every  principle  of  law 
and  every  rule  of  justice. 

"  THEODORE  SEDGEWICK, 

Of  Counsel" 

"  BROOKLYN,  Kings  Co.,  N.  Y.,  ss. 

"  Alexander  Slidell  Mackenzie  being  duly 
sworn,  saith  that  the  paper  hereunto  annexed, 
marked  A.,  is  the  paper  referred  to  by  him 
in  the  official  report  made  by  him  to  the 
secretary  of  the  navy,  under  date  of  the  19th 
day  of  December  last,  or  thereabouts,  and  in 
the  paper  submitted  to  this  court  by  him  on 
the  eleventh  day  of  March  instant,  or  there-' 
abouts,  as  the  memorandum  or  writing  taken 
down  from  the  lips  of  Mr.  Spencer,  on  the 
deck  of  the  Somers,  on  the  first  day  of  De- 
cember last,  in  an  interview  then  and  there 
had  between  this  deponent  and  the  said  Mr. 
Spencer,  and  immediately  previous  to  the  j 
execution. 

"  And  this  deponent  further  saith,  that  the 
said  paper  marked  A.,  is  the  only  memoran-  ' 
dum  or  writing  of  any  description  made  by 
him  on  that  day,  while  in  communication  ' 
with  Mr.  Spencer,  or  having  any  connexion 
with  any  message,  verbal  or  written,  sent  to 
his  friends,  or  anything  of  that  kind  or  de- 
scription, and  that  the  said  paper  A.  is  the  ji 
whole  of  such  memorandum  or  writing. 

"  And  this  deponent  further  saith,  that  the 
said  Philip  H.  Spencer  neither  dictated  nor 
delivered  to  him  any  letter  or  message,  ver- 
bal or  written,  or  anything  of  that  kind  or 
description,  further  than  is  contained  in  the 
said  memorandum. 

"  And  this  deponent  further  saith,  that  the 
latter  portion  of  the  said  paper  marked  A., 
ending  with  the  words,  "  my  father"  and 
beginning  with  the  words,  "  God  who  was" 
was  written  by  him  subsequent  to  his  said 
conversation  with  Mr.  Spencer,  but  within 
a  very  short  time  thereafter,  and  for  the 


NAVAL  COURT  MARTIAL. 


193 


purpose  of  keeping  alive  his  recollection  of 
the  facts. 

"  ALEX.  SLIDELL  MACKENZIE. 

"Sworn   before   me,   this    16th   day   of 
March,  1842. 

"J.   VOORHEES, 

"  Commissioner  of  Deeds" 

"  When  asked  if  he  had  any  message  to 
send  ;  none  that  they  would  wish  to  re- 
ceive. Afterward,  that  you  die  wishing 
them  every  blessing  and  happiness  ;  de- 
served death  for  this,  and  other  sins  ;  that 
you  felt  sincerely  penitent,  and  only  fear 
of  death  was  that  your  repentance  might  be 
too  late.  Many  that  he  had  wronged,  but 
did  not  know  how  reparation  could  be  made 
to  them.  Your  parents  most  wronged  .  .  . 
himself,  by  saying  that  he  had  entertained 
same  idea  in  John  Adams  and  Potomac,  but 
had  not  ripened  it  into  .  .  .  Do  you  not 
think  that  a  mania  which  should  .  .  .  Cer- 
tainly. Objected  to  manner  of  death  ;  re- 
quested to  be  shot.  Could  not  make  any 
distinction  between  him  and  those  whom 
lie  had  seduced.  Justifiable  desire  at  first 
to  ...  The  last  words  he  had  to  say,  and 
hoped  they  would  be  believed,  that  Crom- 
well was  innocent  .  .  .  Cromwell.  Ad- 
mitted it  was  just  that  no  distinction  should 
be  made.  Asked  that  his  face  might  be 
covered.  Granted.  When  he  found  that 
his  repentance  might  not  be  in  season,  I 
referred  him  to  the  story  of  penitent  thief. 
Tried  to  find  it,  could  not.  Read  the  Bible, 
the  Prayer-book.  Did  not  know  what  would 
have  become  of  him  if  succeeded.  Makes 
no  objection  to  death,  but  objects  to  time. 
Reasons — God  would  understand  of  him  of- 
fences   Many  crimes.  Dies  pray- 
ing God  to  bless  and  preserve  .  .  .  I  am 
afraid  this  will  injure  my  father.  God,  who 
was  all-merciful  as  well  as  all-wise,  could 
not  only  extricate  the  difficulty  growing  out 
of  shortness  of  time,  and  from  the  abundance 
of  his  mercy  forgive.  ^Be  the  death  of  my 
poor  mother.  Do  you  not  think  she  would 
have  felt  worse,  if,  instead  of  dying,  you 
had  succeeded  in  your  undertaking  ?  Hor- 
rors here.  Others  in  course  of  piracy  .  .  . 
Cut  off  by  Cromwell,  passing  to  gallows. 
Met  at  pump  well.  Asked  for  Mr.  Wales. 
Mr.  Wales,  I  beg  you  to  forgive  me  for 
having  tampered  with  your  fidelity.  Mr. 
Wales  much  affected.  Are  you  not  going 
25 


too  far  ?  are  you  not  going  too  fast?  I  think, 
sir,  you  ....  The  best  service  he  could 
render  to  his  father,  was  to  die.  Small 
said,  '  Shipmates,  give  me  quick  and  easy 
death.'  Knot,  toggle,  ship-knot.  Asked 
leave  to  give  word.  Granted.  Took  sta- 
tion on  the  trunk  to  see  all  parts.  Waited, 
waited.  Prayer.  *  Shall  I  die  V  Brown- 
ing of  opinion  ....  only  then  began  to 
think  ...  he  really  was  going  to  die ;  he 
kept  such  good  heart.  Small  up,  suffoca- 
ted. Told  him,  in  scarcely  audible  voice, 
to  tell  the  commander  he  must  give  the 
word  himself.  Preparations,  live  coal  match, 
keep  passing  them  up  so  as  to  be  put  on 
perpetually;  then  Cromwell  and  Spencer 
meeting.  No  notice  of  each  other.  Spencer 
as  calm  as  at  any  moment  of  life.  Wales, 
Small,  asked  forgiveness.  No,  by  God, 
Mr.  Spencer  can't  forgive  you ;  consulted 
him  Mr.  Wales,  so  both  together.  Forgive 
me,  Small,  for  leading  you  into  this  trouble  ; 
we  shall  soon  be  in  the  face  of  God  Al- 
mighty, then  see  you  must  forgive  me, 
Small.  I  told  him  to  be  more  generous. 
He  softened.  I  do  forgive  you,  Mr.  Spen- 
cer ;  shook  hands  ;  may  God  Almighty  for- 
give you  also.  Small  on  hammocks,  asked 
leave  to  address  the  ship's  company.  Now 
boys,  &c.,  now  brother  top-mates,  give  me 
a  quick  death ;  run  me  up  smartly  ;  do  not 
let  there  be  any  interval  between  word  and 
firing.  Asked  1st  lieut.  if  firing  with  lock- 
match.  Open  a  chest,  and  got  wafers  ;  or- 
dered live  coals  to  be  passed  up  from  galley. 
"  Stand  by,  fire ;"  instantaneous  shotted 
gun.  Arrangements.  Conversation  about 
coffin.  Beating  to  call.  Gan't  asked  about 
covering  face  No  hangmen.  You  and 
nothing  to  do  with  respects  of  business  and 
as  done  in  secure  and  seamanlike  manner. 
The  rope-string  shipped  to  the  .  .  .  of  a  .  . 
.  .  strain-hooks  moved,  tail-blocks  well  se- 
cured. Roll.  S.  Small  slept  up.  Cromwell 
overboard,  rose,  dipping  to  yard-arm."* 

On  the  opening  of  the  court,  the  judge 
advocate  read  the  following  paper. 

The  counsel  of  the  accused  here  offered 
a  paper,  purporting  to  be  the  one  made  by 
him,  and  the  only  one,  on  the  day  of  the 
execution,  under  the  dictation  of  Mr.  Spen- 
cer; and  the  counsel  of  the  accused  also 
offered  a  paper  introductory  to  it. 

*  The  above  paper  of  Commander  Mackenzie 
is  so  illegible,  as  not  to  be  correctly  written. — ED. 


194 


PROCEEDINGS  OF  THE 


The  judge  advocate  objected  to  the  re- 
ception of  the  first  paper,  because  it  is  not 
legally  identified.  The  court  was  cleared 
to  consider  the  objections,  and  on  the  open- 
ing thereof,  the  judge  advocate  announced 
that  the  first  paper  should  be  received  for 
record,  but  not  as  legal  evidence,  and  that 
the  second  paper  should  likewise  be  re- 
ceived for  record,  with  instructions  to  state 
to  the  counsel  of  the  accused,  that  those 
portions  of  it  reflecting  on  the  judge  advo- 
cate, meet  with  the  court's  exception. 

The  judge  advocate  then  proceeded  to 
read  the  official  report  of  Captain  Macken- 
zie, of  the  transactions  on  board  the  Soiners 
in  her  late  cruise. 

The  examination  of  Mr.  O.  H.  Perry 
was  here  closed  ;  his  evidence  was  read  to 
him,  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Saturday),  March  18,  at  10  o'clock, 
A.M. 

"U.  S.  BRIG  SOMERS,      > 
"Dec.  19,1842.  $ 

"  SIR  :  Since  my  communication  to  you 
of  the  14th  inst.,  on  which  day  I  arrived 
here  with  the  vessel  under  my  command,  I 
have  been  engaged  in  preparing  a  narrative 
of  the  cruise  of  the  Somers,  which  should 
embrace  all  the  facts  that  might  in  any  way 
illustrate  the  late  mutiny  on  board  her.  But 
I  have  been  subjected  to  so  many  interrup- 
tions, from  which  it  was  the  less  easy  to 
escape,  as  they  grew  out  of  the  sympathy 
and  solicitude  of  real  friends,  and  the  narra- 
tive grew  so  interminably  as  I  advanced, 
that  I  have  deemed  it  due  to  the  anxiety  of 
the  Navy  Department,  to  receive  a  more 
detailed  statement  of  the  facts  of  the  muti- 
ny, than  I  was  at  first  able  to  communicate — 
to  break  off  at  once  from  the  elaborate  nar- 
rative, in  which  I  was  engaged,  and  confine 
myself  to  a  statement  of  the  principal  oc- 
currences. I  will,  therefore,  simply  pre- 
mise, that  after  having  made  the  Azores, 
and  touched  at  Madeira,  being  thus  far  di- 
Terted  from  my  course  by  constantly  oppo- 
sing winds,  I  proceeded,  in  fulfilment  of 
your  orders  of  the  7th  and  9th  of  Septem- 
ber last,  to  TennerifTe  and  Porto  Praya,  and 
not  finding  the  U.  S.  ship  Vandalia  there, 
continued  onward  to  Liberia.  I  there  un- 
derstood, as  a  matter  of  common  report,  that 
she  had  sailed  on  the  5th  of  October,  from 


Cape  Palmas,  for  the  United  States.  The 
orders  under  which  I  was  acting,  supposed 
the  Vandalia  to  be  still  on  the  station :  at 
all  events,  the  despatches  with  which  I  was 
charged  could  be  of  no  value  at  home. 
I  therefore  placed  them  in  the  hands  of 
Dr.  J.  S.  Day,  the  United  States  agent, 
whose  receipt  for  them  I  have  the  honor 
to  enclose  ;  and,  having  thus  reached  the 
appointed  limit  of  my  orders,  sailed  on  the 
llth  of  November  for  the  United  States, 
by  way  of  St.  Thomas  ;  where  prudence, 
and  a  just  regard  for  the  health  and  com- 
fort of  my  crew,  required  that  I  should  stop 
to  obtain  a  supply  of  bread,  water,  and  re- 
freshments. 

"  On  Saturday,  the  26th  of  November, 
Lieutenant  G.  Gansevoort  came  into  the 
cabin,  and  informed  me  that  a  conspiracy 
existed  on  board  of  the  brig,  to  capture  her, 
murder  the  commander,  the  officers,  and 
most  of  the  crew,  and  convert  her  into  a 
|  pirate  ;  and  that  Acting-Midshipman  Philip 
;  Spencer  was  at  the  'head  of  it.  He  stated 
that  Mr.  H.  M.  Heiskill,  the  purser,  had 
just  informed  him  that  Mr.  J.  W.  Wales, 
his  steward,  had  approached  him  as  if  to 
converse  on  their  joint  duty,  and  revealed 
to  him,  for  the  purpose  of  its  being  com- 
municated to  the  commander  the  following 
information. 

"  The  night  previous,  being  that  of  the 
25th  of  Nov.,  between  the  hours  of  six  and 
eight,  he  had  been  accosted  by  Mr.  Spencer 
and  invited  by  him  to  get  up  on  the  booms, 
as  he  had  something  of  importance  to  com- 
municate. When  on  the  booms  Mr.  Spen- 
cer addressed  him  as  follows  :  "  Do  you 
fear  death  ?  do  you  fear  a  dead  man  ?  are 
you  afraid  to  kill  a  man  ?"  Mr.  Wales  thus 
accosted,  and  having  his  curiosity  excited, 
with  admirable  coolness  induced  Mr.  Spen- 
cer to  go  on,  and  took  the  oath  of  secrecy 
which  was  administered  to  him.  Mr.  Spen- 
cer then  informed  him  that  he  was  leagued 
with  about  twenty  of  the  crew,  to  get  pos- 
session of  the  vessel ;  murder  the  comman- 
der and  officers  ;  choose,  from  among  those- 
i  of  the  crew  who  were  willing  to  join  him, 
I  such  as  would  be  useful,  and  murder  the 
rest ;  and  commence  pirating.  He  mention- 
ed all  the  details  of  his  plan  as  you  wilt 
find  it  in  the  statement  of  Mr.  Wales,  and 
which  was  well  suited  to  the  attainment  of 
his  objects ;  involving  much  better  notions 
of  seamanship,  than  he  was,  himself,  ca- 


NAVAL  COURT  MARTIAL. 


195 


pable  of  forming.  As  one  of  the  induce- 
ments to  her  capture,  he  stated  that  a  box, 
containing  wine  of  a  rare  value,  brought  off 
with  much  care  at  Madeira,  as  a  present 
from  I.  H.  Burden,  Esq.,  United  States 
vice-consul  at  Funchal,  to  Commodore  J. 
B.  Nicholson,  contained  money  or  treasure 
to  a  large  amount. 

"  It  was  his  object  to  carry  the  vessel  to 
the  Isle  of  Pines,  where  one  of  his  asso- 
ciates, who  had  been  in  the  business  before, 
had  friends ;  to  attack  no  vessels  that  he 
was  not  sure  to  capture  ;  to  destroy  every 
restige  of  the  captured  vessels,  after  having 
removed  what  was  useful ;  to  select  such 
of  the  female  passengers  as  were  suitable, 
and  after  they  had  used  them  sufficiently  to 
dispose  of  them.  Mr.  Spencer  also  stated 
that  he  had  the  written  plan  of  his  project  in 
the  back  of  his  cravat,  which  he  would  show 
to  Mr.  Wales  in  the  morning ;  after  which 
they  separated  with  terrible  threats,on  the  part 
of  Mr.  Spencer,  of  instant  death  to  Mr.  Wales, 
from  himself  or  his  accomplices,  should  Mr. 
Wales  utter  one  word  of  what  passed. 

"  Such  was  the  purport  of  the  information 
laid  before  me  by  Lieutenant  Gansevoort, 
and  although  he  was  evidently  impressed 
with  the  reality  of  the  project,  yet,  it  seem- 
ed to  me  so  monstrous,  so  improbable,  that 
I  could  not  forbear  treating  it  with  ridicule. 
I  was  under  the  impression  that  Mr.  Spen- 
cer had  been  reading  some  piratical  stories 
and  had  amused  himself  with  Mr.  Wales. 
Still  I  felt  that  this  was  joking  on  an  im- 
proper theme,  and  determined  to  notice  it 
hereafter.  I  also  considered  that  duty  re- 
quired me  to  be  on  my  guard,  lest  there 
should  be  a  shadow  of  reality  in  this  proj- 
ect ;  and  I  directed  the  first  lieutenant  to 
watch  Mr.  Spencer  narrowly,  without  seem- 
ing to  do  so.  In  the  course  of  the  day 
Lieutenant  Gansevoort  informed  me  that 
Mr.  Spencer  had  been  in  the  wardroom 
examining  a  chart  of  the  West  Indies.  He 
had  asked  the  passed  assistant  surgeon 
some  question  about  the  Isle  of  Pines,  and 
the  latter  had  informed  him  that  it  was  a 
place  much  frequented  by  pirates  and  dryly 
asked  him  if  he  had  any  acquaintances  there. 
He  passed  the  day  rather  sullenly  in  one 
corner  of  the  steerage,  as  was  his  custom, 
engaged  in  examining  a  small  piece  of  pa- 
per and  writing  on  it  with  his  pencil ;  and 
occasionally  finding  relaxation  in  working 
with  a  penknife  at  the  tail  of  a  devil-fish, 


one  of  the  joints  of  which  he  had  formed 
into  a  sliding  ring  for'his  cravat.  Lieutenant 
Gansevoort  also  made  an  excuse  of  duty  to  • 
follow  him  to  the  foretop,  where  he  found 
him  engaged  in  having  some  love-devices 
tattooed  on  his  arm  by  Benjamin  F.  Green, 
ordinary  seaman  and  apprentice  ;  Lieutenant 
Gansevoort  also  learned  that  he  had  been 
endeavoring  for  some  days  to  ascertain  the 
rate  of  the  chronometer  by  applying  to  Mid- 
shipman Rogers  to  whom  it  was  unknown  t 
and  who  referred  him  to  the  master.  He 
had  been  seen  in  secret  and  nightly  confer- 
ences with  boatswain's  mate,  S.  Cromwell, 
and  seaman,  Elisha  Small.  I  also  heard 
that  he  had  given  money  to  several  of  the 
crew  ;  to  Elisha  Small  on  the  12th  Septem- 
ber, the  day  before  our  departure  from  New 
York,  the  same  day  on  which,  in  reply  to 
Commodore  Perry's  injunctions  to  reforma- 
tion, he  had  made  the  most  solemn  promises 
of  amendment ;  to  Samuel  Cromwell  on  the 
passage  to  Madeira ;  that  he  had  been  in 
the  habit  of  distributing  tobacco  extensively 
among  the  apprentices,  in  defiance  of  the 
orders  of  the  navy  department,  and  my  own, 
often  reiterated ;  that  he  had  corrupted  the 
wardroom  steward,  caused  him  to  steal 
brandy  from  the  wardroom  mess,*  which 

*  The  following  statement  is  due  to  the  ward- 
room officers  of  the  Somers :  When  the  vessel 
was  first  equipped,  I  told  the  1st  lieutenant  that  it 
was  my  wish  that  no  wine,  and  of  course  no  spirit- 
uous liquors,  should  be  used  in  the  steerage  mes?. 
I  gave,  as  a  reason,  that  the  obligation.1?  of  hospi-» 
lality  in  our  public  vessels  fell  altogether  on  the 
cabin  and  wardroom,  and  when  the  midshipmen 
became  wardroom  officers,  they  would  have  their 
full  share  of  this  duty.  This  hint,  accompanied  by 
no  word  of  compulsion,  had  its  effect ;  and  I  never 
had  occasion  to  give  any  order  on  the  subject,  which 
I  was  at  any  time  ready  to  do,  had  it  been  neces- 
sary. In  the  wardroom,  the  officers,  of  course,  had 
their  wine.  I  knew  what  had  been  the  views  on 
that  subject  of  my  friends  Commanders  Pender- 
j  grass  and  Dupont  on  board  the  Ohio,  and  what  had"' 
been  their  practice  with  regard  to  the  total  exclu- 
sion of  spirituous  liquors  from  the  wardroom  of  that 
ship.  I  knew  that  Lieut.  Gansevoort's  views  were 
identical  on  all  subjects  with  those  of  his  two  dis- 
tinguished messmates  above  named.  I  did  not, 
therefore,  interfere  with  regard  to  the  wardroom., 
and  if  I  had  done  it  at  all,  it  would  have  been  with 
extreme  caution,  and  only  in  the  way  of  friendly 
advice.  It  now  appears,  that  when  ordered  to  the 
coast  of  Africa,  some  brandy  was  ordered  for  the 
wardroom  mess,  to  be  used  medicinally,  in  conse- 
quence of  advice  given  by  the  assistant  surgeon  of 
the  Somers,  and  the  assistant  surgeon  of  the  Gram- 
pus, who  for  a  time  had  relieved  Dr.  Leecock  on 
froard  the  Somers*  They  had  recently  been  on  the 


196 


PROCEEDINGS  OF  THE 


he  (Mr.  Spencer)  had  drunk  himself,  oc- 
casionally getting  drunk  when  removed  from 
observation ;  and  had  also  administered  to 
several  of  the  crew  ;  that,  finally,  he  was 
in  the  habit  of  amusing  the  crew  by  making 
music  with  his  jaw,  he  had  the  faculty  of 
throwing  his  jaw  out  of  joint,  and  by  the 
contact  of  the  bones  playing  with  accuracy 
and  elegance  a  variety  of  airs.  Servile  in 
his  intercourse  with  me,  when  among  the 
crew  he  loaded  me  with  blasphemous  vi- 
tuperations, and  proclaimed  that  it  wrould 
be  a  pleasing  task  to  roll  me  off  the  round- 
house, overboard.  He  had  sometime  before 
drawn  a  brig  with  a  blag  flag,  and  asked 
one  of  the  midshipmen  what  he  thought  of 
it ;  he  had  repeatedly  asserted  in  the  early 
part  of  the  cruise  that  the  brig  might  easily 
be  taken  ;  he  had  quite  recently  examined 
the  hand  of  Midshipman  Rogers,  told  his 
fortune,  and  predicted  for  him  a  speedy  and 
violent  death. 

"  These  various  circumstances  induced 
me  to  look  back  and  recall  all  that  I  had 
heard  of,  or  had  observed  in,  Mr.  Spencer. 
When  he  reported  himself  to  me  for  duty 
at  New  York,  about  the  20th  of  August,  I 
at  once  gave  him  my  hand  and  welcomed 
him  on  board  the  Somers.  I  subsequently 
heard  that  he  had  quite  recently  been  dis- 
missed with  disgrace  from  the  Brazilian 
squadron,  and  compelled  to  resign,  for 
drunkenness  and  scandalous  conduct.  This 
fact  made  me  very  desirous  for  his  removal 
from  the  vessel,  chiefly  on  account  of  the 
young  men  who  were  to  mess  with  and  be 
associated  with  him — the  rather  that  two 
of  them  were  connected  with  me  by  blood, 
and  two  by  alliance,  and  the  four  intrusted 
to  my  especial  care.  The  circumstance  of 
Mr.  Spencer  being  a  son  of  a  high  officer 

coast  of  Africa,  and  considered  the  use  of  brandy 
ns  salutary  in  preventing  the  effects  of  malaria.  By 
accident,  as  it  was  thought  at  the  time,  but,  as  sub- 
design,  the  wardroom  steward  contrived  to  make  a 
mistake,  and  the  supply  of  brandy  was  ordered  from 
two  different  grocers ;  thus  doubling  the  quantity 
intended  to  be  taken.  We  were  not  exposed  to  the 
influence  of  malaria;  none  of  the  brandy  was  used 
in  the  mess,  and  all  of  it  is  still  on  board,  except 
what  was  stolen  by  the  steward  at  the  request  of 
Mr.  Spencer,  and  drank  by  him  and  those  he  en- 
deavored to  corrupt.  It  is  due  to  the  wardroom 
officers  that  thus  much  should  be  made  known,  to 
save  them  from  being  prejudiced  in  the  minds  of 
those  who  hold,  as  I  do,  that  the  drinking  of  brandy 
is  even  more  to  be  dreaded  than  malaria. 


of  the  government,  by  enhancing  his  base- 
ness in  my  estimation,  made  me  more  desi- 
rous to  be  rid  of  him ;  on  this  point,  I  beg 
that  I  may  not  be  misunderstood — I  revere 
authority,  I  recognise  in  the  exercise  of  its 
higher  functions  in  this  free  country,  the 
evidence  of  genius,  intelligence,  and  virtue  ; 
but  I  have  no  respect  for  a  base  son  of  an 
honored  father — on  the  contrary,  I  consider 
that  he,  who  by  misconduct  sullies  the  lus- 
tre of  an  honorable  name,  is  more  culpable 
than  the  unfriended  individual  whose  dis- 
grace falls  only  on  himself.  I  wish,  how- 
ever, to  have  nothing  to  do  with  baseness 
in  any  shape — the  navy  is  not  the  place  for 
it.  On  these  accounts,  I  readily  sought 
the  first  opportunity  of  getting  rid  of  Mr. 
Spencer.  When  we  were  on  the  eve  of 
sailing,  two  midshipmen,  who  had  been 
Avith  me  before,  and  in  whom  I  had  confi- 
dence, joined  the  vessel.  This  carried  to 
seven  the  number  to  occupy  a  space  capa- 
ble of  accommodating  only  five.  I  had 
heard  that  Mr.  Spencer  had  expressed  a 
willingness  to  be  transferred  from  the  Som- 
ers to  the  Grampus.  I  directed  Lieutenant 
Gansevoort  to  say  to  him,  that  if  he  would 
apply  to  Commodore  Perry  to  detach  him 
(there  was  no  time  to  communicate  with 
the  navy  department),  I  would  second  the 
application.  He  made  the  application  ;  I 
seconded  it  earnestly,  urging  that  it  should 
be  granted  on  the  score  of  the  comfort  of 
the  young  officers.  The  commodore  de- 
clined detaching  Mr.  Spencer,  but  offered 
to  detach  Midshipman  Henry  Rogers,  who 
had  been  last  ordered.  I  could  not  consent 
to  part,  with  Midshipman  Rogers,  whom  I 
knew  to  be  a  seaman,  an  officer,  a  gentle- 
man, a  young  man  of  high  attainment  with- 
in his  profession  and  beyond  it. 

"  The  Somers  sailed  with  seven  in  her 
steerage  ;  they  could  not  all  sit  together 
round  the  table.  The  two  oldest  and  most 
useful  had  no  locker  to  put.  their  clothes  in, 
and  have  slept  during  the  cruise  on  the 
steerage-deck,  the  camp-stools,  the  booms 
in  the  tops,  or  in  the  quarter-boats.  They 
have  submitted  to  these  inconveniences 
without  a  murmur,  and  performed  their  duty 
to  my  utmost  satisfaction. 

"I  recurred  to  this  recollection;  I  en- 
deavored to  review  the  conduct  of  Mr. 
Spencer  throughout  the  cruise.  I  had  treat- 
ed Mr.  Spencer  precisely  like  the  other 
midshipmen.  Perhaps  I  reproved  him  less 


NAVAL  COURT  MARTIAL. 


197 


frequently  than  others  for  slight  deviations 
from  duty  ;  I  had  little  hope  of  essentially 
serving  one  who  had  been  so  great  an  ene- 
my to  himself. 

"  I  had  observed  that  he  had  very  little 
intercourse  with  the  officers,  that  he  was 
exceedingly  intimate  with  the  crew  ;  I  had 
noticed  the  interchange  of  a  passing  joke, 
as  individuals  passed  by  him,  a  smile  never 
seen  but  on  such  occasions,  a  strange  flash- 
ing of  the  eye.  These  various  recollections, 
added  to  what  had  been  revealed  to  me, 
determined  me  to  make  sure  at  once  of  his 
person,  though  1  had  before  meditated  al- 
lowing Mr.  Wales  to  have  another  interview 
with  him  that  evening,  for  the  purpose  of 
ascertaining  more  of  his  plans,  as  had  been 
agreed  upon  between  them.  If  he  was 
really  in  earnest,  enough  was  already 
known.  At  evening  quarters  I  ordered, 
through  my  clerk,  0.  H.  Perry,  doing  the 
duty  also  of  midshipman  and  aid,  all  the 
officers  to  lay  aft  on  the  quarter-deck,  ex- 
cepting the  midshipmen  stationed  on  the 
forecastle.  The  master  was  ordered  to  take 
the  wheel,  and  those  of  the  crew  stationed 
abaft  sent  to  the  mainmast ;  I  approached 
Mr.  Spencer  and  said  to  him,  *  I  learn,  Mr. 
Spencer,  that  you  aspire  to  the  command 
of  the  Somers  ?'  With  a  deferential,  but 
unmoved  and  gently  smiling  expression,  he 
replied,  '  Oh,  no,  sir.'  '  Did  you  not  tell 
Mr.  Whales,  sir,  that  you  had  a  project  to 
kill  the  commander,  the  officers,  and  a 
considerable  portion  of  the  crew,  of  this 
vessel,  and  convert  her  into  a  pirate  ?'  *  I 
may  have  told  him  so,  sir,  but  it  was  in 
joke.'  *  You  admit  then  that  you  told  him 
so  ?'  '  Yes,  sir  ;  but  in  joke.'  '  This,  sir, 
is  joking  on  a  forbidden  subject — this  joke 
may  cost  you  your  life.  Be  pleased  to  re- 
move your  neck  handkerchief.'  It  was  re- 
moved and  opened,  but  nothing  was  found 
in  it.  I  asked  him  what  he  had  done  with 
the  papers  containing  an  account  of  his 
project  which  he  had  told  Mr.  Wales  was 
in  the  back  of  his  neck  handkerchief.  *  It 
is  a  paper  containing  my  day's  work,  and  I 
have  destroyed  it.'  '  It  is  a  singular  place 
to  keep  day's  work  in.'  *  It  is  a  convenient 
one,'  he  replied,  with  an  air  of  deference 
and  blandness.  I  said  to  him,  '  You  must 
have  been  aware  that  you  could  only  have 
compassed  your  designs  by  passing  over 
my  dead  body,  and  after  that,  the  bodies  of 
all  the  officers  ;  you  had  given  yourself,  sir, 


a  great  deal  to  do  ;  it  will  be  necessary  for 
me  to  confine  you,  sir."  I  turned  to  Lieut. 
Gansevoort  and  said,  '  Arrest  Mr.  Spencer, 
and  put  him  in  double  irons.'  Mr.  Ganse- 
voort stepped  forward  and  took  his  sword. 
He  was  ordered  to  sit  down  on  the  stern- 
post,  double  ironed,  and,  as  an  additional 
security,  hand-cuffed.  I  directed  Lieut. 
Gansevoort  to  watch  over  his  security,  to 
order  him  to  be  put  to  instant  death,  if  he 
was  detected  speaking  to,  or  holding  intel- 
ligence in  any  way  with,  any  of  the  crew. 
He  was  himself  made  aware  of  the  nature 
of  these  orders.  I  also  directed  Lieutenant 
Gansevoort  to  see  that  he  had  every  com- 
fort which  his  safe-keeping  would  admit  of. 
In  confiding  this  task  to  Lieutenant  Ganse- 
voort, his  kindness  and  humanity  gave  me 
the  assurance  that  it  would  be  zealously 
attended  to ;  and  throughout  the  period  of 
Mr.  Spencer's  confinement,  Lieut.  Ganse- 
voort, while  watching  his  person  with  an 
eagle  eye,  and  ready  at  any  movement  to 
take  his  life,  should  he  forfeit  that  condition 
of  silence  on  which  his  safety  depended, 
attended  to  all  his  wants,  covered  him  with 
his  own  grego  when  squalls  of  rain  were 
passing  over,  and  ministered  in  every  way  to 
his  comfort  with  the  tenderness  of  a  woman. 
Mr.  Spencer  being  confined,  the  officers 
were  remanded  to  their  quarters,  the  crew 
and  battery  inspected,  the  ordinary  reports 
made  to  the  first  lieutenant,  and  by  him  to 
me,  and  the  retreat  beaten.  That  night  the 
officers  of  the  watch  were  armed  with  cut- 
lasses and  pistols,  and  the  rounds  of  both 
decks  made  frequently,  to  see  that  the  crew 
were  in  their  hammocks,  and  that  there 
were  no  suspicious  collections  of  individu- 
als about  the  decks.  On  searching  the 
locker  of  Mr.  Spencer,  a  small  razor-case 
was  found,  which  he  had  recently  drawn, 
with  a  razor  in  it  from  the  purser.  Instead 
of  the  razor,  the  case  was  found  to  contain 
a  small  paper  rolled  in  another ;  on  the  in- 
ner one  were  strange  characters,  which 
proved  to  be  Greek,  with  which  Mr.  Spen- 
cer was  familiar.  It  fortunately  happened 
that  there  was  another  midshipman  on  board 
the  Somers,  who  knew  Greek,  one  whose 
Greek  and  everything  else  that  he  possessed 
was  wholly  his,  devoted  to  his  country.  The 
Greek  characters  converted  by  Midship'n  H. 
Rogers  into  our  own,  exhibited  well-known 
names  among  the  crew.  The  certain,  the 
doubtful,  those  who  were  to  be  kept  whether 


198 


PROCEEDINGS  OF  THE 


they  would  or  not,  arranged  in  separate  rows ; 
those  who  were  to  do  the  work  of  murder  in 
the  various  departments,  to  take  the  wheel, 
to  open  the  arm-chest. 

"  The  following  day  being  Sunday,  the 
crew  were  inspected  at  quarters  at  10 
o'clock.  I  took  my  station  abaft,  with  the 
intention  of  particularly  observing  Cromwell 
and  Small.  The  third  or  master's  division, 
to  which  they  both  belonged,  always  mus- 
tered at  morning  quarters  upon  tha  afterpart 
of  the  quarter-deck,  in  continuation  of  the 
line  formed  by  the  crews  of  the  guns.  The 
persons  of  both  were  faultlessly  clean ; 
they  were  determined  that  their  appearance 
in  this  respect  should  provoke  no  reproof. 
Cromwell  stood  up  to  his  full  stature,  his 
muscles  braced,  his  battle-axe  grasped  res- 
olutely, his  cheek  pale,  but  his  eye  fixed, 
as  if  indifferently,  at  the  other  side.  He 
had  a  determined  and  dangerous  air.  Small 
made  a  very  different  figure.  His  appear- 
ance was  ghastly,  he  shifted  his  weight 
from  side  to  side,  and  his  battle-axe  passed 
from  one  hand  to  the  other ;  his  eye  wan- 
dered irresolutely,  but  never  toward  mine. 
I  attributed  his  conduct  to  fear.  I  have 
since  been  led  to  believe  that  the  business 
upon  which  he  had  entered  was  repugnant 
to  his  nature,  though  the  love  of  money  and 
of  rum  had  been  too  strong  for  his  fidelity. 

"  After  quarters  the  church  was  rigged. 
The  crew  mustered  up  with  their  prayer- 
books,  and  took  their  seals  without  waiting 
for  all  hands  to  be  called,  and  considerably 
before  five  bells,  or  half  past  ten,  the  usual 
time  of  divine  service.  The  first  lieutenant 
reported  all  ready,  and  asked  me  if  he 
should  call  all  hands  to  muster.  I  told  him 
to  wait  for  the  accustomed  hour.  Five  bells 
was  at  length  struck,  and  all  hands  called 
to  muster.  The  crew  were  unusually  at- 
tentive, and  the  responses  more  than  com- 
monly audible  ;  the  muster  succeeded,  and 
I  examined  very  carefully  the  countenances 
of  the  crew,  without  discovering  anything 
that  gave  me  distrust.  In  the  afternoon, 
the  wind  having  moderated,  skysails  and 
royal-studdingsails  were  set.  In  going 
large,  I  had  always  been  very  particular  to 
have  no  strain  on  the  light  braces  leading 
forward,  as  the  tendency  of  such  a  strain 
was  to  carry  away  the  light  yards  and 
masts.  While  Ward  M.  Gagely,  one  of 
the  best  and  most  skilful  of  our  apprentices, 
was  yet  on  the  main-royal-yard,  after  set- 


ting the  main-skysail,  a  sudden  jerk  of  the 
weather-main-royal-brace,  given  by  Small 
and  another  whose  name  I  have  not  discov- 
ered, carried  the  top-gallant-mast  away  in 
the  sheare-hole,  sending  forward  the  royal- 
mast,  with  royal-skysail,  royal  studdingsail, 
main-top-gallant-staysail,  and  the  head  of 
the  gaft-topsail.  Gagely  was  on  the  royal- 
yard.  I  scarcely  dared  to  look  on  the 
booms  or  in  the  larboard  gangway,  where 
he  should  have  fallen.  For  a  minute  I  was 
in  intense  agony  ;  in  the  next  I  saw  the 
shadow  of  the  boy  through  the  top-gallant- 
sail,  rising  rapidly  toward  the  top-gallant- 
yard,  which  still  remained  at  the  mast-head. 
Presently  he  rose  to  view,  descended  on 
the  afterside  to  the  topmast-cap,  and  began 
to  examine  with  coolness  to  see  what  was 
first  to  be  done  to  clear  the  wreck.  I  did 
not  dream  at  the  time  that  the  carrying 
away  of  this  mast  was  the  work  of  treach- 
ery ;  but  I  knew  it  was  an  occasion  of  this 
sort,  the  loss  of  a  boy  overboard,  or  an  ac- 
cident to  a  spar,  creating  confusion  and  in- 
terrupting the  regularity  of  duty,  which  was 
likely  to  be  taken  advantage  of  by  the  con- 
spirators, were  they  still  bent  on  the  prose- 
cution of  their  enterprise,  The  greatest 
pains  were  therefore  taken  to  prevent  all 
confusion :  the  first  lieutenant  took  the 
deck;  everything  connected  with  the  wreck 
was  sent  down  from  aloft,  the  rigging  un- 
rove  and  coiled  down,  sails  bent  afresh  to 
the  yards,  the  sparetop-gallant-mast  got  out 
and  scraped  and  slushed,  and  the  fid-hole 
cut,  every  one  employed,  and  everything 
made  to  go  on  with  undeviating  regularity. 
To  my  astonishment,  all  those  who  were 
most  conspicuously  named  in  the  programme 
of  Mr.  Spencer,  no  matter  in  what  part  of 
the  vessel  they  might  be  stationed,  mustered 
at  the  main-top-mast-head.  Whether  ani- 
mated by  some  new-born  zeal  in  the  service 
of  their  country,  or  collected  there  for  the 
purpose  of  conspiring,  it  was  not  easy  to 
decide  ;  the  coincidence  confirmed  the  ex- 
istence of  a  dangerous  conspiracy,  suspend- 
ed, yet  perhaps  not  abandoned.  The  eye 
of  Mr.  Spencer  travelled  perpetually  to  the 
mast-head,  and  cp.st  thither  many  of  those 
strange  and  stealthy  glances  which  I  had 
heretofore  noticed.  The  wreck  being  cleared, 
supper  was  piped  before  sending  up  the 
new  mast ;  after  supper  the  same  persons 
mustered  again  at  the  mast-head,  and  the 
top-gallant-mast  was  fidded,  the  light  yards 


NAVAL  COURT  MARTIAL, 


199 


crossed  and  the  sails  set.  By  this  time  it 
was  dark,  and  quarters  had  been  unavoida- 
bly dispensed  with  ;  still  I  thought,  under 
the  circumstances,  that  it  was  scarcely  safe 
to  leave  Cromwell  at  large  during  the  night : 
the  night  was  the  season  of  danger.  Af- 
ter consulting  Lieutenant  Gansevoort,  I  de- 
termined to  arrest  Cromwell ;  the  moment 
he  reached  the  deck,  an  officer  was  sent  to 
leeward  to  guard  the  lee  rigging,  and  the 
main-stays  were  also  thought  of,  though  not 
watched  ;  as  his  voice  was  heard  in  the  top 
descending  the  rigging,  I  met  him  at  the 
foot  of  the  jacob's-ladder  surrounded  by  the 
officers,  guided  him  aft  on  the  quarter-deck 
and  caused  him  to  sit  down  ;  on  questioning 
him  as  to  a  secret  conversation  he  had 
held  the  night  before  with  Mr.  Spencer,  he 
denied  its  being  he  :  he  said,  "  It  was  not 
me,  sir,  it  was  Small."  Cromwell  was  the 
tallest  man  on  board,  and  Small  the  shortest. 
Cromwell  was  immediately  ironed,  and 
Small  then  pointed  out  by  an  associate  to 
increased  suspicion,  was  also  sent  for,  in- 
terrogated, and  ironed.  Increased  vigilance 
was  now  enjoined  upon  all  the  officers ; 
henceforward,  all  were  perpetually  armed  ; 
either  myself  or  the  first  lieutenant  was 
always  on  deck,  and  generally  both  of  us 
were. 

"  On  the  morning  of  the  following  day, 
being  Monday,  the  28th  November,  two 
crimes  of  considerable  magnitude  appeared 
on  the  master-at-arms?s  report  of  prisoners. 
Charles  Lambert,  apprentice,  had  been  guilty 
of  theft,  in  stealing  sinnit  for  a  hat  from 
Ward  M.  Gagely,  and  Henry  Waltham,  the 
wardroom  steward,  had  stolen  brandy  from 
the  wardroom  mess,  and  given  it  to  Mr. 
Spencer.  These  were  vile  offences  :  the 
present  was  not  a  time  to  bring  the  dis- 
cipline of  the  vessel  to  a  stand,  and  the 
prisoners  were  both  punished  to  the  extent 
of  the  law.  Waliham,  while  in  irons,  had 
the  night  before  told  Daniel  M'Kinley,  who 
had  access  to  the  ward-room  as  cot-boy, 
where  three  bottles  of  wine  could  be  found, 
his  object  being,  no  doubt,  to  furnish  the 
means  of  excitement  to  the  conspirators,  to 
induce  them  to  rise,  release  Waltham,  and 
get  possession  of  the  vessel.  M'Kinley  was 
down  in  the  programme  as  certain,  and  as 
stationed  at  the  arm-chest.  He  reported 
Waltham  to  the  first  lieutenant — an  extra- 
ordinary denunciation  under  the  circum- 
stances, probably  occasioned  by  his  desire 


to  relieve  himself  from  suspicion.  Waltham 
having  thus,  in  contempt  of  discipline,  com- 
mitted a  second  offence  while  in  confine- 
ment, was  remanded  into  irons,  to  be  sub- 
jected to  a  second  punishment  on^ the  fol- 
lowing day.  The  punishment  being  over,  I 
thought  this  a  fit  opportunity  to  endeavor  to 
make  some  impression  on  the  crew.  The 
number  of  them  actually  engaged  in  the 
conspiracy  might  not  be  great :  that  it  was 
known  to  a  majority  of  them,  I  had  reason 
to  believe.  In  general,  they  might  be  con- 
sidered disaffected,  and  disposed  on  all  oc- 
casions to  hold  back  and  resist  the  disci- 
pline of  the  ship  ;  the  mysterious  agency 
that  had  been  at  work,  since  our  departure 
from  New  York,  to  corrupt  the  crew,  was 
now  disclosed.  I  commenced  by  explain- 
ing to  them  the  general  nature  of  the  pro- 
ject of  Mr.  Spencer,  studiously  avoiding  to 
excite  any  suspicions  that  I  was  in  the  pos- 
session of  the  names  of  those  who  were  im- 
plicated. I  was  willing,  in  fact,  that  the 
worst  of  them  should  repent  and  hide  them- 
selves among  the  well-disposed  portion  of 
the  crew.  I  took  care  to  inform  them  that 
the  majority  of  them,  whatever  might  be 
their  inclination,  were  to  share  the  fate  of 
the  officers.  I  endeavored  to  divert  the 
minds  of  the  slightly  disaffected  from  the 
picture  of  successful  vice  which  Mr.  Spen- 
cer had  presented  to  them.  I  alluded  to  the 
circumstance,  that  the  most  of  the  crew, 
unlike  crews  in  general,  leaving  ties  of  kin- 
dred to  render  life  dear  to  them,  and  ex- 
pressed the  hope  that  within  three  weeks 
we  should  be  again  among  our  friends.  I 
thanked  God  that  we  had  friends  to  follow 
us  with  solicitude  and  affection  ;  for  to  have 
friends,  and  not  to  be  unworthy  of  them, 
was  the  best  guarantee  that  could  be  given 
for  truth  and  fidelity. 

"  The  effect  of  this  upon  the  crew  was 
various :  it  filled  many  with  horror  at  the 
idea  of  what  they  had  escaped  from :  it  in- 
spired others  with  terror  at  dangers  await- 
ing them  from  their  connexion  with  the 
conspiracy.  The  thoughts  of  returning  to 
that  home  and  those  friends  from  whom  it 
had  been  intended  to  have  cut  them  off  for- 
ever, caused  many  of  them  to  weep.  I  now 
considered  the  crew  tranquillized  and  the 
vessel  safe.  Having  noticed  Mr.  Spencer's 
attempt  to  hold  intelligence  with  the  crew, 
I  directed  that  all  the  prisoners  should  be 
turned  with  their  faces  aft.  I  also  directed 


200 


PROCEEDINGS  OF  THE 


that  no  tobacco  should  be  furnished  them 
after  the  supply  they  had  on  their  persons 
when  confined  should  be  exhausted.  They 
earnestly  begged  to  be  allowed  tobacco.  I 
told  the  Jirst  lieutenant  to  say  that  Mr.  Spen- 
cer should  have  all  his  mess  afforded  (and 
his  messmates  in  fact  already  took  care  of 
that),  that  the  seamen  should  have  their  ra- 
tions as  it  was  allowed  by  the  government, 
that  everything  should  be  supplied  to  them 
that  was  necessary  to  their  health  and  com- 
fort, but  that  tobacco  was  a  stimulant,  and 
"wished  them  to  tranquillize  their  minds  and 
remain  free  from  excitement.  The  day  after 
Mr.  Spencer's  tobacco  was  stopped,  his  spir^ 
its  gave  way  entirely.  He  remained  the 
whole  day  with  his  face  buried  in  the  grego, 
and  when  it  was  for  a  moment  raised,  it  was 
bathed  in  tears.  He  was  touched  by  the 
gentle  and  untiring  attentions  of  Lieutenant 
Gansevoort.  He  told  him  that  he  was  in  no 
state  at  that  time  to  speak  of  anything — 
when  he  felt  more  composed  he  would  tell 
him  all — he  would  answer  any  questions 
that  the  commander  might  desire  to  put  to 
him.  On  Tuesday,  November  29th,  imme- 
diately after  quarters,  all  hands  were  again 
called  to  witness  punishment,  and  Henry 
Waltham  again  punished  to  the  extent  of 
the  law  for  offering  the  three  bottles  of 
wine  to  Daniel  M'Kinley.  I  again  spoke 
to  the  crew,  urging  them  to  conform  to  the 
discipline  of  the  vessel :  the  orders  were 
all  known,  and  of  easy  observance.  I  men- 
tioned that  every  punishment  inflicted  must 
be  known  to  the  secretary  of  the  navy,  and 
that  the  less  punishment  there  was,  the 
more  creditable  it  would  be  to  the  com- 
mander and  the  crew.  But  the  whole  crew 
was  far  from  being  tranquillized  :  the  most 
seriously  implicated  began  once  more  to  col- 
lect in  knots :  during  the  night,  seditious 
words  were  heard  through  the  vessel,  and 
an  insolent  and  menacing  air  assumed  by 
many.  Some  of  the  petty  officers  had  been 
sounded  by  the  first  lieutenant,  and  found  to 
be  true  to  their  colors  :  they  were  under  the 
impression  that  the  vessel  was  yet  far  from 
safe — that  there  were  still  majiy  at  liberty 
who  ought  to  be  confined — that  an  outbreak, 
having  for  its  object  the  rescue  of  the  pris- 
oners, was  seriously  contemplated.  Various 
intelligence  was  from  time  to  time  obtained, 
of  conferences  among  the  disaffected  :  indi- 
viduals not  before  supposed  to  be  very  deeply 
implicated,  were  now  found  in  close  asso- 


ciation with  those  who  were  :  several  times 
during  the  night  there  were  symptoms  of  an 
intention  to  strike  some  blow.  Mr.  Wales 
detected  Charles  A.  Wilson  attempting  to 
draw  out  a  handspike  from  under  the  launch, 
with  an  evident  purpose  of  felling  him,  and 
when  Wales  cocked  his  pistol  and  approach- 
ed, he  could  only  offer  some  lame  excuse 
for  his  presence  there.  I  felt  more  anxious 
than  I  had  yet  done,  and  remained  contin- 
ually on  deck.  At  12  o'clock,  when  the 
watch  was  called  and  mustered,  M'Kinley, 
Green,  and  others  seriously  implicated,  miss- 
ed their  muster.  That  they  should  have 
been  asleep  at  all  that  night,  was  not  likely  : 
that  they  should  have  missed  their  muster 
on  that  particular  occasion,  having  never 
done  so  before,  otherwise  than  intentionally, 
was  impossible.  Those  who  missed  their 
muster  had  all  some  lame  excuse  :  there 
was  probably  an  agreement  to  meet  around 
the  officer  of  the  deck,  and  commit  some 
act  of  violence.  I  heard  Green  give  as  an 
excuse  for  missing  his  muster,  that  he  was 
on  deck,  but  could  not  get  aft  for  want  of 
room.  I  immediately  went  forward,  rejected 
his  excuse  with  some  exclamation  of  impa- 
tience, and  ordered  him  to  take  the  look-out 
forward  for  four  hours,  directing  the  midship- 
man of  the  forecastle  to  watch  him  closely. 
The  others  who  had  missed  their  muster 
were  similarly  distributed.  At  4  o'clock, 
others  of  the  implicated  also  missed  their 
muster.  I  could  not  contemplate  this  growth 
of  disaffection  without  serious  uneasiness. 
Where  was  this  thing  to  end  ?  Each  new 
arrest  of  prisoners  seemed  to  bring  a  fresh 
set  of  conspirators  forward,  to  occupy  the 
first  place.  With  fine  weather  and  bright 
nights,  there  was  already  a  disposition  to 
make  an  attack  and  rescue  the  prisoners. 
When  bad  weather  should  call  off  the  atten- 
tion of  the  officers — when  the  well-disposed 
portion  of  the  crew  should  be  occupied  in 
shortening  sail,  and  utter  darkness  should 
withdraw  everything  from  view,  how  great 
the  probability  of  a  rescue.  If  the  most 
deeply  implicated  were  ironed,  would  all  the 
dangerous  be  in  custody  ?  What  sympathy 
might  not  be  excited  by  the  suffering  of  the 
prisoners  ?  These  grave  considerations,  the 
deep  sense  I  had  of  the  solemn  obligation  I 
was  under  to  protect  and  defend  the  vessel 
which  had  been  intrusted  to  me,  and  the 
lives  of  the  officers  and  crew — the  seas 
traversed  by  our  peaceful  merchantmen,  and 


NAVAL  COURT  MARTIAL. 


201 


the  unarmed  of  all  nations  using  the  high- 
ways of  the  seas  from  the  horrors  which 
the  conspirators  had  meditated,  and  above 
all  to  guard  from  violation  the  sanctity  of 
the  American  flag  displayed  from  the  mast- 
head of  one  of  its  cruisers — all  impressed 
upon  me  the  absolute  necessity  of  adopting 
immediately  some  further  measures  for  the 
security  of  the  vessel.  Hitherto  I  had  con- 
sulted the  first  lieutenant  only,  and  had  been 
justified  in  everything  I  had  done  by  finding 
his  opinions  identical  with  my  own.  In  so 
grave  a  case,  however,  I  was  desirous  of 
having  the  opinion  of  all  the  officers,  and 
was  particularly  anxious  that  no  shadow  of 
doubt  should  remain  as  to  the  guilt  of  either 
of  the  prisoners,  should  their  execution  be 
deemed  necessary.  Under  these  circum- 
stances, I  addressed  the  following  letter  to 
all  the  officers  on  board  excepting  the  acting- 
midshipmen.  Though  they  had  done  men's 
duty  in  the  late  transaction,  they  were  still 
boys  :  their  opinion  could  add  but  little  force 
to  that  of  the  other  officers  :  it  would  have 
been  hard,  at  their  early  age,  to  call  upon 
them  to  say  whether  three  of  their  fellow- 
creatures  should  live  or  die. 

"  '  U.  S.  BRIG  SOMERS,  > 
"'Nov.  30,  1842.  $ 
"  *  GENTLEMEN  :  The  time  has  arrived 
when  I  am  desirous  of  availing  myself  of 
your  council  in  the  responsible  position  in 
which,  as  commander  of  this  vessel,  I  find 
myself  placed.  You  are  aware  of  the  cir- 
cumstances which  have  resulted  in  the  con- 
finement of  Midshipman  Philip  Spencer, 
Boatswain's  Mate  Samuel  Cromwell,  and 
Seaman  E.  Small,  as  prisoners,  and  I  pur- 
posely abstain  from  entering  into  any  details 
of  them,  necessarily  ignorant  of  the  exact 
extent,  of  disaffection  among  a  crew  which 
has  so  long  and  so  systematically  and  as- 
siduously been  tampered  with  by  an  officer. 
Knowing  that  suspicions  of  the  gravest  na- 
ture attach  to  persons  still  at  large,  and 
whom  the  difficulty  of  taking  care  of  the 
prisoners  we  already  have,  makes  me  more 
reluctant  than  I  should  otherwise  be  to  ap- 
prehend, I  have  determined  to  address  my- 
self to  you,  and  to  ask  your  united  council 
as  to  the  best  course  to  be  now  pursued,  and 
I  call  upon  you  to  take  into  deliberate  and 
dispassionate  consideration  the  present  con- 
dition of  the  vessel,  and  the  contingencies 
of  every  nature  that  the  future  may  embrace, 
26 


throughout  the  remainder  of  our  cruise,  and 

enlighten  me  with  your  opinion  as  to  the 

best  course  to  be  pursued. 

"  '  I    am,  very    respectfully,    gentlemen, 

your  most  obedient, 

"  'ALEX.  SLIDELL  MACKENZIE, 

"  '  Commander. 

"  *  To  Lieutenant  Guest  Gansevoort,  Passed- 
Assistant  Surgeon  R.  W.  Leecock,  Purser 
H.  M.  Heiskill,  Acting-Master  M.  C.  Per- 
ry, Midshipman  Henry  Rogers,  Midship- 
man Egbert  Thompson,  Midshipman  Chas. 
W.  Hayes.' 

"  After  I  had  written  the  letter  to  the  offi- 
cers, but  before  I  had  sent  it,  9  o'clock  of 
Wednesday  morning  the  30th  of  November 
had  arrived,  and  with  it  the  customary 
morning  quarters.  Wilson  having  failed  in 
his  attempt  to  get  up  an  outbreak  in  the 
night,  and  finding  himself  narrowly  watched, 
and  feeling  indeed  that  he  could  be  no 
longer  left  at  large,  had  come  forward 
with  some  lame  and  absurd  confession,  and 
the  request  that  he  should  not  be  ironed.  I 
immediately  told  him  that,  if  he  would  make 
a  real  confession,  he  should  not  be  molest- 
ed, and  that  it  was  only  an  insult  to  offer 
me  such  a  lame  story  as  that  which  had 
been  already  reported  to  me  by  Lieutenant 
Gansevoort.  Nothing  more  could  be  got 
from  him,  and  at  quarters  he  was  ironed. 
In  his  sail-bag  was  found  an  African  knife 
of  an  extraordinary  shape — short,  and  grad- 
ually spreading  in  breadth,  sharp  on  both 
sides  ;  it  was  of  no  use  for  any  honest  pur- 
pose ;  it  was  fit  only  to  kill ;  it  had  been 
secretly  sharpened,  by  his  own  confession, 
the  day  before  with  a  file  to  a  perfect  edge. 
He  had  begun  also  to  sharpen  his  battle- 
axe  with  the  same  assistant ;  one  part  of  it 
he  had  brought  to  an  edge.  The  sharpen- 
ing of  battle-axes  had  never  been  allowed 
or  practised  on  board  of  the  Somers. 
M'Kinley,  also  down  among  the  certain, 
and  beyond  a  doubt  correctly,  was  now  ar- 
rested. Hitherto  he  had  kept  at  large  by 
his  admirable  steadiness  and  command  of 
countenance.  He  is,  in  fact,  the  individual 
who,  if  the  mutiny  had  been  successful, 
would  have  made  way  with  all  his  compet- 
itors and  risen  to  the  command. 

"  Remembering  Green's  demeanor  during 
the  past  night,  I  sent  for  him,  interrogated 
him,  and  ironed  him.  Alexander  M'Kee, 
who  was  to  have  taken  the  wheel,  and  who 


202 


PROCEEDINGS  OF  THE 


was  entirely  in  the  confidence  of  Cromwell, 
was  also  ironed.  These  individuals  were 
made  to  sit  down  as  they  were  taken  ;  and 
when  they  were  ironed,  I  walked  deliberate- 
ly round  the  battery,  followed  by  the  first 
lieutenant,  and  we  made  together  a  very 
careful  inspection  of  the  crew.  Those 
who  (though  known  to  be  very  guilty)  were 
considered  to  be  the  least  dangerous,  were 
called  out  and  interrogated  ;  care  was  taken 
not  to  awaken  the  suspicions  of  such  as 
from  courage  and  energy  were  really  formi- 
dable, unless  it  were  intended  to  arrest  them. 
Our  prisoners  now  amounted  to  seven,  fil- 
ling up  the  quarter-deck,  and  rendering  it 
very  difficult  to  keep  them  from  communi- 
cating with  each  other,  interfering  essen- 
tially with  the  management  of  the  vessel. 
The  last  prisoners  taken  were  those  to 
whom  reference  is  made  in  my  letter  to  the 
officers,  written  before,  but  not  sent  until 
after  their  captures.  On  the  receipt  of  my 
letter,  the  officers  immediately  assembled 
in  the  wardroom,  and  commenced  the  ex- 
amination of  witnesses  ;  the  witnesses  were 
duly  sworn,  and  the  testimony  accurately 
written  down  ;  in  addition  to  the  oath,  each 
witness  signed  the  evidence  which  he  had 
given,  after  it  had  been  read  over  to  him. 
The  officers  passed  the  whole  day  in  this 
occupation  without  interruption  and  without 
food.  I  remained  in  charge  of  the  deck, 
with  the  three  young  midshipmen,  on  con- 
stant duty  ;  the  officers  were  excused  from 
evening  quarters.  At  nightfall,  orders  were 
sent  to  them  to  discontinue  their  delibera- 
tions and  resume  their  watches,  as  the 
present  safety  of  the  vessel  must  be  at- 
tended to. 

"  The  risks  and  uncertainty  of  the  pre- 
ceding night  had  determined  me  that  an- 
other such  should  not  be  passed.  I  drew 
up  a  watch-bill  of  all  the  officers,  idlers  in- 
cluded, dividing  them  into  two  watches,  and 
assigning  to  each  a  separate  station  in  dif- 
ferent parts  of  the  vessel.  I  took  charge  of 
the  starboard  watch  myself,  and  assigned  the 
larboard  to  the  first  lieutenant.  This  brought 
me  with  two  watches  on  deck,  but  the  first 
lieutenant  had  been  as  much  on  duty  as 
myself ;  even  this,  however,  was  a  great 
relief,  as  I  obtained  at  intervals,  during  the 
midwatch,  an  hour  or  two  of  refreshing 
sleep. 

"  In  the  course  of  the  morning  of  Thurs- 
day, the  1st  of  December,  the  first  lieuten- 


ant presented  to  me  the  following  letter,  in 
answer  to  that  which  I  had  addressed  the 
previous  morning  to  the  officers  : — 

"  '  U.  S.  BRIG  SOMERS,  > 
"  'Dec.  1,  1842.  $ 
"  '  SIR  :  In  answer  to  your  letter  of  yes- 
terday, requesting  our  counsel  as  to  the  best 
course  to  be  pursued  with  the  prisoners, 
Acting-Midshipman  Philip  Spencer,  Boat- 
swain's Mate  Samuel  Cromwell,  and  Sea- 
man Elisha  Small,  we  would  state,  that  the 
evidence  which  has  come  to  our  knowledge 
is  of  such  a  nature  as,  after  as  dispassionate 
and  deliberate  a  consideration  of  the  case 
as  the  exigencies  of  the  time  would  admit, 
we  have  come  to  a  cool,  decided,  and  unan- 
imous opinion,  that  they  have  been  guilty 
of  a  full  and  determined  intention  to  com- 
mit a  mutiny  on  board  of  this  vessel  of  a 
most  atrocious  nature  ;  and  that  the  revela- 
tion of  circumstances  having  made  it  neces- 
sary to  confine  others  with  them,  the  uncer- 
tainty as  to  what  extent  they  are  leagued 
with  others  still  at  large,  the  impossibility 
of  guarding  against  the  contingencies  which 
'  a  day  or  an  hour  may  bring  forth,'  we  are 
convinced  that  it  would  be  impossible  to 
carry  them  to  the  United  States,  and  that 
the  safety  of  the  public  property,  the  lives 
of  ourselves,  and  of  those  committed  to  our 
charge,  require  that  (giving  them  sufficient 
time  to  prepare)  they  should  be  put  to  death, 
in  a  manner  best  calculated  as  an  example 
to  make  a  beneficial  impression  upon  the 
disaffected.  This  opinion  we  give,  bearing 
in  mind  our  duty  to  our  God,  our  country, 
and  to  the  service. 

"  '  We  are,  sir,  very  respectfully,  your 
obedient  servants, 

"  '  GUEST  GANSEVOORT,  Lieutenant, 
"  '  R.  W.  LEECOCK,  PaJd  Ass.  Surg'n. 
"  «  H.  M.  HEISKILL,  Purser, 
"  <  M.  C.  PERRF,  Acfg  Master, 
"  *  HENRY  ROGERS,  Midshipman, 
,   "  '  EGBERT  THOMPSON,  Midshipman, 
"  '  CHAS.  W.  HAYS,  Midshipman.1 

"  I  at  once  concurred  in  the  justice  of 
this  opinion,  and  in  the  necessity  of  carry- 
ing its  recommendations  into  immediate  ef- 
fect. There  were  two  others  of  the  con- 
spirators almost  as  guilty,  so  far  as  the  in- 
tention was  concerned,  as  the  three  ring- 
leaders, who  had  been  first  confined,  and  to 
whose  cases  the  attention  of  the  officers  had 


NAVAL  COURT  MARTIAL. 


203 


been  invited ;  but  they  could  be  kept  in 
confinement  without  extreme  danger  to  the 
ultimate  safety  of  the  vessel.  The  three 
chief  conspirators  alone  were  capable  of 
navigating  and  sailing  her.  By  their  re- 
moval, the  motive  to  a  rescue,  capture,  and 
carrying  out  of  the  original  design  of  piracy, 
was  at  once  taken  away.  Their  lives  were 
justly  forfeited  to  the  country  which  they 
had  betrayed,  and  the  interests  of  that  coun- 
try, and  the  honor  and  security  of  its  flag, 
required  that  the  sacrifice,  however  painful, 
should  be  made.  In  the  necessities  of  my 
position  I  found  my  law,  and  in  them  also 
I  must  trust  to  find  my  justification.  I  had 
for  a  day  or  two  been  disposed  to  arm  the 
petty  officers  ;  on  this  subject  alone  the  first 
lieutenant  differed  from  me  in  opinion, 
influenced  in  some  degree  by  the  opinion 
of  some  of  the  petty  officers  themselves, 
who  thought  that,  in  the  peculiar  state  of 
the  vessel,  the  commander  and  officers 
could  not  tell  whom  to  trust,  and  therefore 
had  better  trust  no  one.  I  had  made  up  my 
own  mind,  reasoning  more  from  the  proba- 
bilities of  the  case  than  from  my  knowledge 
of  their  characters  (which  was  necessarily 
less  intimate  than  that  of  the  first,  lieuten- 
ant), that  they  could  be  trusted,  and  deter- 
mined to  arm  them.  I  directed  the  first 
lieutenant  to  muster  them  on  the  quarter- 
deck, to  issue  to  each  a  cutlass,  pistol,  and 
cartridge-box,  and  to  report  to  me  when 
they  were  armed.  I  then  addressed  them 
as  follows  :  '  My  lads,  you  are  to  look  at 
me,  to  obey  my  orders,  and  to  see  my  or- 
ders obeyed.  Go  forward.' 

"  I  gave  orders  to  make  immediate  prepa- 
rations for  hanging  the  three  principal  crimi- 
nals at  the  main-yard  arms  ;  all  hands  were 
now  called  to  witness  punishment.  The 
after-guard  and  idlers  of  both  watches,  were 
mustered  on  the  quarter-deck  at  the  whip 
intended  for  Mr.  Spencer ;  the  forecastle 
men  and  foretopmen  at  that  of  Cromwell,  to 
whose  corruption  they  had  been  chiefly  ex- 
posed ;  the  maintopmen  of  both  watches  at 
that  intended  for  Small,  who  for  a  month  or 
more  had  held  the  situation  of  captain  of 
the  maintop.  The  officers  were  stationed 
about  the  decks  according  to  the  watch-bill 
I  had  made  out  the  night  before,  and  the 
petty  officers  were  similarly  distributed, 
with  orders  to  cut  down  whoever  should  let 
go  the  whip  with  even  one  hand,  or  fail  to 


haul  on  it  when  ordered.  The  ensign  and 
pendant  being  bent  on  and  ready  for  hoist- 
ing ;  I  now  put  on  my  full  uniform  and  pro- 
ceeded to  execute  the  most  painful  duty 
that  has  ever  devolved  on  an  American 
commander — that  of  an  announcing  to  the 
criminals  their  fate.  I  informed  Mr.  Spen- 
cer that  when  he  had  been  about  to  take  my 
life,  and  dishonor  me  as  an  officer  when  in 
the  execution  of  my  rightful  duty,  without, 
cause  of  offence  to  him,  on  speculation  ;  it 
had  been  his  intentions  to  remove  me  sud- 
denly from  the  world  in  the  darkness  of 
night,  in  my  sleep,  without  a  moment  to 
utter  one  murmur  of  affection  to  my  wife 
and  children,  one  prayer  for  their  welfare. 
His  life  was  now  forfeited  to  his  country, 
and  the  necessities  of  the  case,  growing 
out  of  his  corruption  of  the  crew,  compel- 
led me  to  take  it.  I  would  not,  however, 
imitate  his  intended  example,  as  to  the 
manner  of  claiming  the  sacrifice.  If  there 
yet  remained  to  him  one  feeling  true  to  na- 
ture, it  should  be  gratified.  If  he  had  any 
word  to  send  to  his  parents,  it  should  be 
recorded  and  faithfully  delivered.  Ten 
minutes  should  be  granted  him  for  this  pur- 
pose, and  Midshipman  E.  Thompson  was 
called  to  note  the  time,  and  inform  me  when 
the  ten  minutes  had  elapsed. 

This  intimation  overcame  him  entirely. 
He  sank,  with  tears,  upon  his  knees  and 
said  he  was  not  fit  to  die.  I  repeated  to 
him  his  own  catechism,  and  begged  him  at 
least  to  let  the  officer  set,  to  the  men  he 
had  corrupted  and  seduced,  the  example  of 
dying  with  decorum. 

This  immediately  restored  him  to  entire 
self-possession  ;  and,  while  he  was  engaged 
in  prayer,  I  went  and  made  in  succession 
the  same  communication  to  Cromwell,  and 
Small.  Cromwell  fell  upon  his  knees  com- 
pletely unmanned,  protested  his  innocence, 
and  invoked  the  name  of  his  wife.  Mr. 
Spencer  said  to  me,  "  As  these  are  the  last 
words  I  have  to  say,  I  trust  they  will  be 
believed,  Cromwell  is  innocent."  The  evi- 
dence had  been  conclusive,  yet  I  was  stag- 
gered. I  sent  for  Lieutenant  Gansevoort 
and  consulted  him,  he  said  there  was  not  a 
shadow  of  doubt.  I  told  him  to  consult  the 
petty  officers.  He  was  condemned  by  ac- 
clamation by  the  petty  officers.  He  was 
the  one  man  of  whom  they  had  real  appre- 
hensions ;  the  accomplice  at  first,  and  after- 


204 


PROCEEDINGS   OF  THE 


ward  the  urger  on  of  Mr.  Spencer,  who 
had  trained  him  to  the  act  by  which  he  in- 
tended to  benefit. 

I  returned  to  Mr.  Spencer  ;  I  explained 
to  him  how  Cromwell  had  made  use  of  him  ; 
I  told  him  that  remarks  had  been  made 
about  the  two  not  very  flattering  to  him, 
and  which  he  might  not  care  to  hear  ;  which 
showed  the  relative  share  ascribed  to  each 
of  them  in  the  contemplated  transaction. 
He  expressed  great  anxiety  to  hear  what 
was  said.  One  had  told  the  first  lieutenant 
"  In  my  opinion,  sir,  you  have  the  damned 
fool  on  the  larboard  arm-chest,  and  the 
damned  villain  on  the  starboard  ;"  another 
had  remarked  that  after  the  vessel  should 
have  been  captured  by  Mr.  Spencer,  Crom- 
well might  allow  him  to  live,  provided  he 
made  himself  useful ;  he  would  probably 
make  him  his  secretary.  I  remarked,  "  I 
do  not  think  this  would  have  suited  your 
temper."  This  effectually  aroused  him,  his 
countenance  assumed  a  demonaical  expres- 
sion ;  he  said  no  more  of  the  innocence 
of  Cromwell  ;  subsequent  circumstances 
too  surely  confirm  his  admission  of  his 
guilt.  He  might,  perhaps,  have  wished  to 
save  him  in  fulfilment  of  some  mutual  oath. 
He  more  probably  hoped  he  might  yet  get 
possession  of  the  vessel  and  carry  out  the 
scheme  of  murder  and  outrage  matured  be- 
tween them.  It  was  on  Cromwell  that  he 
had  apparently  trusted  in  fulfilment  of  some 
agreement  for  a  rescue,  and  eloquently 
pleaded  to  Lieutenant  Gansevoort,  when 
Cromwell  was  ironed  for  his  release,  as  al- 
together ignorant  of  his  designs  and  inno- 
cent. ,  He  had  endeavored  to  make  of  the 
E.  Andrews  appearing  on  the  list  of  the 
certain,  an  alias  for  Small,  though  his  name, 
as  Small,  also  appeared  in  the  list  among 
those  to  effect  the  murder  in  the  cabin,  by 
falsely  asserting  that  Small  was  a  feigned 
name,  when  we  had  evidence  in  a  letter  ad- 
dressed by  Small's  mother  to  him,  that  Small 
was  her  name  as  well  as  his.  Small  alone, 
whom  we  had  set  down  as  the  poltroon  of 
the  three,  and  on  that  account  had  at  first 
determined  not  to  iron,  received  the  an- 
nouncement of  his  fate  with  composure. 
"When  asked  if  he  had  any  preparation  to 
make,  any  message  to  send,  he  said,  '  I 
have  nobody  to  care  for  me  but  my  poor 
old  mother,  and  I  would  rather  that  she 
should  not  know  how  I  have  died.' 

"  I  returned  to  Mr.  Spencer  and  asked  him 


if  he  had  no  message  to  send  to  his  friends ; 
he  answered,  '  None  that  they  would  wish 
to  receive.'  When  urged  still  farther  to 
send  some  words  of  consolation  in  so  great 
an  affliction,  he  said,  *  Tell  them  I  die 
wishing  them  every  blessing  and  happiness  ; 
I  deserve  death  for  this  and  many  other 
crimes — there  are  few  crimes  that  I  have 
not  committed  ;  I  feel  sincerely  penitent, 
and  my  only  fear  of  death  is  that  my  re- 
pentance may  be  too  late.'  I  asked  him  if 
there  was  any  one  whom  he  had  injured  to 
whom  he  could  yet  make  reparation — any 
one  who  was  suffering  obloquy  for  crimes 
which  he  had  committed ;  he  made  no  an- 
swer, but  soon  after  continued,  '  I  have 
wronged  many  persons,  but  chiefly  my  pa- 
rents ;'  he  said,  '  This  will  kill  my  poor 
mother.'  I  was  not  before  aware  that 
he  had  a  mother  ;  when  recovered  from  the 
pain  of  this  announcement,  I  asked  him  if 
it  would  not  have  been  still  more  dreadful 
had  he  succeeded  in  his  attempt,  murdered 
the  officers  and  the  greater  part  of  the  crew 
of  the  vessel,  and  run  that  career  of  crime 
which  with  so  much  satisfaction  he  had 
marked  out  for  himself ;  he  replied,  after  a 
pause,  '  I  do  not  know  what  would  have 
become  of  me  had  [  succeeded.'  I  told  him 
that  Cromwell  would  soon  have  made  way 
with  him,  and  M'Kinley  probably  have 
cleared  the  whole  of  them  from  his  path. 
'  I  fear,'  said  he,  *  this  may  injure  my  father.' 
I  told  him  it  was  almost  too  late  to  think  of 
that — that  had  he  succeeded  in  his  wishes, 
it  would  have  injured  his  father  much  more — 
that  had  it  been  possible  to  have  taken  him 
home,  as  I  intended  to  do,  it  was  not  in  na- 
ture that  his  father  should  not  have  inter- 
fered to  save  him — that  for  those  who  have 
friends  or  money  in  America  there  was  no 
punishment  for  the  worst  of  crimes* — that 
though  this  had  nothing  to  do  with  my  de- 
termination, which  had  been  forced  upon 
me  in  spite  of  every  effort  which  I  had 
made  to  avert  it,  I  on  this  account  the  less 
regretted  the  dilemma  in  which  I  was 
placed ;  it  would  injure  his  father  a  great 
deal  more,  if  he  got  home  alive,  should  he 
be  condemned  and  yet  escape  ;  the  best  and 
only  service  he  could  do  his  father  was  to 
die.  'I  will  tell  you  frankly,'  he  said, 
'  what  I  intended  to  do  had  I  got  home — I 

*  Perhaps  this  was  an  extreme  and  erroneous 
opinion,  which  I  do  not  attempt  to  justify ;  I  am  only 
faithfully  recording  what  passed  on  the  occasion. 


NAVAL  COURT  MARTIAL. 


205 


should  have  attempted  to  escape  ;  I  had 
the  same  project  on  board  the  John  Adams 
and  Potomac — it  seemed  to  be  a  mania 
with  me.'  '  Do  you  not  think,'  I  asked, 
that  this  is  a  mania  which  should  be  dis- 
couraged in  the  navy  V  « I  do,  most  cer- 
tainly.' Afterward  he  said  to  me,  '  But 
have  you  not  formed  an  exaggerated  esti- 
mate of  the  extent  of  this  conspiracy  ?'  I 
told  him  '  No,'  that  his  systematic  efforts  to 
corrupt  the  crew  and  prepare  them  for  the 
indulgence  of  every  evil  passion,  since  the 
day  before  our  departure  from  New  York, 
had  been  but  too  successful.  I  knew  that 
the  conspiracy  was  still  extensive — I  did 
not  know  how  extensive.  I  recapitulated 
to  him  the  arts  which  he  had  used  ;  he  was 
startled  by  my  telling  him  that  he  had  made 
the  wardroom  steward  steal  brandy  and  had 
given  it  to  the  crew ;  he  said,  *  I  did  not 
make  him  steal  it ;'  I  told  him  it  was  brought 
at  his  request — that  he  knew  where  it  came 
from — it  was,  if  possible,  more  criminal  to 
seduce  another  to  commit  crime  than  to 
commit  crime  one's  self;  he  admitted  the 
justice  of  this  view.  He  turned  again  to 
say  to  me,  '  But  are  you  not  going  too  far — 
are  you  not  fast  ?  does  the  law  entirely  jus- 
tify you  ?'  I  replied  that  he  had  not  con- 
sulted me  in  making  his  arrangements — 
that  his  opinion  could  not  be  an  unpreju- 
diced one — that  I  had  consulted  all  his 
brother  officers,  his  messmates  included, 
except  the  boys,  and  I  placed  before  him 
their  opinion.  He  stated  that  it  was  just, 
that  he  deserved  death  ;  he  asked  me  what 
was  the  manner  of  death  ;  I  explained  it  to 
him  ;  he  objected  to  it  and  asked  to  be  shot ; 
I  told  him  that  I  could  not  make  any  dis- 
tinction between  him  and  those  whom  he 
had  corrupted  ;  he  admitted  that  this  also 
was  just ;  he  objected  to  the  shortness  of 
the  time  for  preparation,  and  asked  for  an 
hour ;  no  answer  was  made  to  this  request, 
but  he  was  not  hurried,  and  more  than  the 
hour  he  asked  for  was  allowed  to  elapse. 
He  requested  that  his  face  might  be  cov- 
ered ;  this  was  readily  granted,  and  he  was 
asked  what  it  should  be  covered  with  ;  he 
did  not  care  ;  a  handkerchief  was  sought 
for  in  his  locker,  none  but  a  black  one  found, 
and  this  brought  for  the  purpose. 
s.  I  now  ordered  that  the  other  criminals 
should  be  consulted  as  to  their  wishes  in 
this  particular  ;  they  joined  in  the  request, 
and  frocks  were  taken  from  their  bags  to 


cover  their  heads.  Mr.  Spencer  asked  to 
have  his  irons  removed  ;  this  could  not  be 
granted :  he  asked  for  a  bible  and  prayer- 
book  ;  they  were  brought,  and  others  or- 
dered to  be  furnished  to  his  accomplices. 
'  I  am  a  believer,'  he  said — *  do  you  think 
that  repentance  at  this  late  hour  can  be  ac- 
cepted ?'  I  called  to  his  recollection  the 
case  of  the  penitent  thief  who  was  pardoned 
by  our  Savior  upon  the  cross.  He  then 
read  in  the  Bible,  kneeled  down  and  read  in 
the  prayer-book ;  he  again  asked  if  I  thought 
that  his  repentance  could  be  accepted — that 
the  time  was  so  short,  'and  he  did  not  know 
if  he  really  was  changed.  I  told  him  that 
GOD,  who  was  all-merciful  as  well  as  all- 
wise,  could  not  only  understand  the  diffi- 
culties of  his  situation,  but  extend  to  him 
such  a  measure  of  mercy  as  his  necessities 
might  require.  He  said,  '  I  beg  your  for- 
giveness for  what  I  have  meditated  against 
you.'  I  gave  him  my  hand,  and  assured 
him  of  my  sincere  forgiveness ;  I  asked 
him  if  I  had  ever  done  anything  to  him  to 
make  him  seek  my  life,  or  whether  the 
hatred  he  had  conceived  for  me,  and  of 
which  I  had  only  recently  become  aware, 
was  fostered  for  the  purpose  of  giving  him- 
self some  plea  of  justification.  He  said, 
'  It  was  only  a  fancy — perhaps  there  might 
have  been  something  in  your  manner  which 
offended  me.'  He  read  over  what  I  had 
written  down  :  I  had  stated  hurriedly  in  the 
third  person,  '  He  excused  himself  by  say- 
ing that  he  had  entertained  the  same  idea 
in  the  John  Adams  and  Potomac.'  He 
asked  that  that  might  be  corrected — « I  did 
not  offer  it  as  an  excuse,  I  only  stateu^  it  as 
a  fact.'  More  than  an  hour  had  now  elapsed 
during  the  continuance  of  this  scene  ;  the 
petty  officers  had  been  assigned  according 
to  rank,  to  conduct  the  several  prisoners  to 
the  gangway;  at  the  break  of  the  quarter- 
deck is  a  narrow  passage  between  the  trunk 
and  pumpwell — Mr.  Spencer  and  Cromwell 
met  exactly  on  either  side.  I  directed 
Cromwell  to  stop,  to  allow  Mr.  Spencer  to 
pass  first ;  at  this  moment  Mr.  Spencer  him- 
self paused  and  asked  to  be  allowed  to  see 
Mr.  Wales ;  he  was  called,  and  Cromwell 
now  passed  on,  almost  touching  Mr.  Spen- 
cer. Not  one  word  was  now  said  by  Mr. 
Spencer  of  the  innocence  of  Cromwell  t 
no  appeal  was  made  by  Cromwell  to  Mr. 
Spencer  to  attest  his  innocence.  When 
Mr.  Wales  came  up,  Mr.  Spencer  extend- 


206 


PROCEEDINGS  OF  THE 


ing  his  hand  to  him,  said,  *  Mr.  Wales,  I 
earnestly  hope  you  will  forgive  me  for  tam- 
pering with  your  fidelity.'  Mr.  Spencer 
was  wholly  unmoved,  Mr.  Wales  almost 
overcome  with  emotion  ;  he  replied,  '  I  do 
forgive  you  from  the  bottom  of  my  heart, 
and  I  hope  that  God  may  forgive  you  also. 
'  Farewell,'  exclaimed  Mr.  Spencer,  and  Mr. 
Wales,  weeping  and  causing  others  to  weep, 
responded  *  Farewell.'  Mr.  Spencer  now 
passed  on ;  about  this  time  he  asked  for 
Midshipman  Rogers  ;  the  message  was  car- 
ried to  Mr.  Rogers,  but  he  had  no  orders 
to  leave  his  station :  I  was  only  afterward 
aware  of  the  request.  At  the  gangway 
Mr.  Spencer  met  Small  with  the  same  calm 
manner,  but  with  a  nearer  approach  to 
emotion;  he  placed  himself  in  front  of 
Small, extended  his  hand  and  said,  'Small, 
forgive  me  for  leading  you  into  this  trouble.' 
Small  drew  back  with  horror — 'No,  by 
God !  Mr.  Spencer,  I  can't  forgive  you.'  On 
a  repetition  of  the  request,  Small  exclaimed 
in  a  searching  voice,  '  Ah !  Mr.  Spencer, 
that  is  a  hard  thing  for  you  to  ask  me  ;  we 
shall  soon  be  before  the  face  of  God,  and 
there  we  shall  know  all  about  it.'  '  You 
must  forgive  me,  Small — I  can  not  die  with- 
out your  forgiveness.'  I  went  to  Small  and 
urged  him  to  be  more  generous — that  this 
was  no  time  for  resentment.  He  relented 
at  once,  held  out  his  hand  to  take  the  still- 
extended  hand  of  Mr.  Spencer,  and  said 
•with  frankness  and  emotion,  '  I  do  forgive 
you,  Mr.  Spencer  ;  may  God  Almighty  for- 
give you,  also !'  Small  now  asked  my  for- 
giveness ;  he  was  the  one,  of  the  three, 
who  was  most  entitled  to  compassion  ;  I 
took  his  hand,  and  expressed  my  complete 
forgiveness  in  the  strongest  terms  that  I 
was  able ;  I  asked  him  what  I  had  ever 
said  or  done  to  him  to  make  him  seek  my 
life,  conscious  of  no  injustice  or  provocation 
of  any  sort :  I  felt  that  it  was  yet  necessary 
to  my  comfort  to  receive  the  assurance  from 
his  own  lips.  If  any  wrong  had  been  done 
him — if  any  word  of  harshness,  in  the  im- 
patience or  excitement  of  duty,  had  escaped 
me,  I  was  ready  myself  to  ask  also  for  for- 
giveness. I  had  hardly  asked  the  question 
before  he  exclaimed,  '  What  have  you  done 
to  me,  Captain  Mackenzie  ?  what  have  you 
clone  to  me,  sir? — nothing,  but  treat  me  like 
a  man.'  I  told  him,  in  justification  of  the 
tourse  which  I  was  pursuing,  that  I  had 
high  responsibilities  to  fulfil — that  there 


were  duties  that  I  owed  to  the  government 
which  had  intrusted  me  with  this  vessel — 
to  the  officers  placed  under  my  command — 
to  those  boys  whom  it  was  intended  either 
to  put  to  death,  or  reserve  for  a  fate  more 
deplorable  :  there  was  yet  a  higher  duty  to 
the  flag  of  my  country.  He  was  touched 
by  this  :  '  You  are  right,  sir;  you  are  doing 
your  duty,  and  I  honor  you  for  it ;  God  bless 
that  flag  and  prosper  it !  Now,  brother  top- 
mates,'  he  said,  turning  to  those  who  held 
the  whip,  '  give  me  a  quick  and  easy  death.' 
He  was  placed  on  the  hammocks  forward 
of  the  gangway,  with  his  face  inboard. 
Mr.  Spencer  was  similarly  placed  abaft  the 
gangway,  and  Cromwell  also  on  the  other 
side. 

"  Mr.  Spencer,  about  this  time,  sent  for 
Lieut.  Gansevoort,  and  told  him  that  he 
might  have  heard  that  his  courage  had  been 
doubted,  he  wished  him  to  bear  testimony 
that  he  died  like  a  brave  man.  He  then 
asked  me  what  was  to  be  the  signal  of  the 
execution.  I  told  him  that  being  desirous 
to  hoist  the  colors  at  the  moment  of  execu- 
tion, at  once  to  give  solemnity  to  the  act 
and  to  indicate  that  by  it  the  colors  of  the 
Somers  were  fixed  to  the  mast  head,  I  had 
intended  to  beat  the  call  as  for  hoisting  the 
colors,  then  roll  off,  and  at  the  third  roll  fire 
a  gun.  He  asked  to  be  allowed  himself  to 
give  the  word  to  fire  the  gun ;  I  acceded  to 
the  request,  and  the  drum  and  fife  were  dis- 
missed. He  asked  if  the  gun  was  under 
him  ;  I  told  him  it  was  next  but  one  to  him. 
He  begged  that  no  interval  might  elapse 
between  giving  the  word,  and  firing  the 
gun.  1  asked  if  they  were  firing  with  the 
lock  and  wafer,  which  had  always  proved 
quick  and  sure,  but  was  told  that  they  had 
a  tube  and  priming,  and  were  prepared  to 
fire  with  a  match ;  some  delay  Avould  have 
been  necessary  to  have  opened  the  arm- 
chest,  and  get  out  a  wafer,  I  ordered  a  sup- 
ply of  live  coal  to  be  passed  aft  from  the 
galley,  and  fresh  ones  perpetually  supplied  ; 
then  assured  him  there  would  be  no  delay. 
Time  still  wearing  away  in  this  manner, 
Small  requested  leave  to  address  the  crew. 
Mr.  Spencer  having  leave  to  give  the  word, 
was  asked  if  he  would  consent  to  the  delay. 
He  assented,  and  Small's  face  being  uncov- 
ered, he  spoke  as  follows—4  Shipmates  and 
topmates,  take  warning  by  my  example ;  I 
never  was  a  pirate,  I  never  killed  a  man.; 
it's  for  saying  that  I  would  do  it,  that  I  ana 


NAVAL  COURT  MARTIAL. 


207 


about  to  depart  this  life ;  see  what  a  word 
will  do.  It  was  going  in  a  Guinea-man  that 
brought  me  to  this ;  beware  of  a  Guinea- 
man.'  He  turned  to  Mr.  Spencer,  and  said 
to  him,  '  I  am  now  ready  to  die,  Mr.  Spen- 
cer, are  you  ?' 

"  Cromwell's  last  words  were,  *  Tell  my 
wife  I  die  an  innocent  man ;  tell  Lieut. 
Morris,  I  die  an  innocent  man.'  But  it  had 
been  the  game  of  this  man  to  appear  inno- 
cent, to  urge  Mr.  Spencer  on,  to  furnish 
him  with  professional  ideas,  to  bring  about 
a  catastrophe,  of  which  Mr.  Spencer  was 
to  take  all  the  risk,  and  from  which  he, 
Cromwell,  was  to  derive  all  the  benefit. 
He  had  taken  a  great  many  precautions  to 
appear  innocent,  but  he  had  not  taken 
enough.  I  now  placed  myself  on  the  trunk, 
in  a  situation  from  which  my  eye  could  take 
in  everything.  I  waited  for  some  time,  but 
no  word  was  given.  At  length  Browning 
saluted  me,  and  said,  '  Mr.  Spencer  says 
he  can  not  give  the  word ;  he  wishes  the 
commander  to  give  the  word  himself.'  The 
word  was  accordingly  given,  and  the  exe- 
cution took  place.  The  crew  were  now 
ordered  aft,  and  I  addressed  them  from  the 
trunk  on  which  I  was  standing.  I  called 
their  attention  first,  to  the  fate  of  the  unfor- 
tunate young  man,  whose  ill-regulated  am- 
bition, directed  to  the  most  infamous  end, 
had  been  the  exciting  cause  of  the  tragedy 
they  had  just  witnessed.  I  spoke  of  his 
honored  parents,  of  his  distinguished  father, 
whose  talents  and  character  had  raised  him 
to  one  of  the  highest  stations  in  the  land, 
to  be  one  of  the  six  appointed  counsellors 
of  the  representation  of  our  national  sover- 
eignty. I  spoke  of  the  distinguished  social 
position  to  which  this  young  man  had  been 
born  ;  of  the  advantages  of  every  sort,  that 
attended  the  outset  of  his  career ;  and  of  the 
professional  honors  to  which  a  long,  steady, 
and  faithful  perseverance  in  the  course  of 
duty,  might  ultimately  have  raised  him. 
After  a  few  months'  service  at  sea  most 
wretchedly  employed,  so  far  as  the  acquisi- 
tion of  professional  knowledge  was  con- 
cerned, he  had  aspired  to  supplant  me  in 
command,  which  I  had  only  reached  after 
nearly  thirty  years  of  faithful  servitude,  and 
for  what  object  I  had  already  explained  to 
them.  I  told  them  that  their  future  fortunes 
were  within  their  own  control ;  they  had 
advantages  of  every  sort,  and  in  an  eminent 
degree,  for  the  attainment  of  professional 


knowledge.  The  situations  of  warrant  offi- 
cers, and  of  masters  in  the  navy,  were  open 
to  them.  They  might  rise  to  command  in 
the  merchant  service — to  respectability, 
competence,  and  to  fortune.  But  they  must 
advance  regularly,  and  step  by  step  ;  every 
step,  to  be  sure,  must  be  guided  by  truth, 
honor,  arid  fidelity.  I  called  their  attention 
to  Cromwell's  case  ;  he  must  have  received 
an  excellent  education ;  his  handwriting 
was  even  elegant ;  but  he  had  also  fallen 
through  brutish  sensuality,  and  the  greedy 
thirst  for  gold.  The  first  fifteen  dollars  giv- 
en to  him  by  Mr.  Spencer,  had  bought  him  ; 
and  the  hope  of  plunder  held  out  to  him  by 
Mr.  Spencer,  who,  to  completely  win  him, 
had  converted  a  box  of  old  wine  into  treas- 
ure, had  secured  the  purchase.  There  was 
an  anecdote  told  by  Collins  in  his  mess, 
which,  with  Cromwell's  commentary,  had 
reached  my  ears.  I  caused  Collins  to  stand 
up  on  the  pumpwell,  and  relate  it  to  the 
boys.  Collins  had  been  in  an  IndiamanT 
on  board  of  which  the  supercargo,  a  Mr. 
Thorndyke,  had  brought  a  keg  of  doubloons. 
Collins  stowed  it  in  the  run,  and  was  alone 
intrusted  with  the  secret  of  its  being  on 
board.  He  said  not  a  word  about  it,  until  it 
went  ashore.  Cromwell,  on  hearing  thisr 
laughed  at  Collins,  and  said,  had  the  case 
been  his  he  would  have  run  away  with  the 
keg.  The  story,  and  what  had  passed  be- 
fore their  eyes,  contained  all  the  moral  that 
it  was  necessary  to  enforce.  I  told  the 
boys,  in  conclusion,  that  they  had  only  to 
choose  between  the  morality  of  Cromwell 
and  that  of  Collins — Cromwell  at  the  yard- 
arm,  and  Collins  piping  with  his  call.  Small 
had  also  been  born  for  better  things.  He 
had  enjoyed  the  benefits  of  education,  was 
a  navigator,  had  been  an  officer  in  a  mer- 
chantman, but  he  could  not  resist  the  brandy 
which  had  been  proffered  to  him,  nor  the 
prospect  of  dishonorable  gain  ;  he  had,  how- 
ever, at  least  died  invoking  blessings  on  the 
flag  of  his  country.  The  crew  were  now 
piped  down  from  witnessing  punishment, 
and  all  hands  called  to  cheer  the  ship.  I 
gave  the  order,  *  Stand  by,  to  give  three 
hearty  cheers  for  the  flag  of  our  country ;' 
never  were  three  heartier  cheers  given.  In 
that  electric  moment,  I  do  not  doubt  that  the 
patriotism  of  even  the  worst  of  the  con- 
spirators, for  an  instant,  broke  forth.  I  felt 
that  I  once  more  was  completely  command- 
er of  the  vessel  that  was  intrusted  to  me, 


208 


PROCEEDINGS  OF  THE 


equal  to  do  with  her  whatever  the  honor  of 
my  country  might  require.  The  crew  were 
now  piped  down,  and  piped  to  dinner.  I 
noticed  with  pain,  that  many  of  the  boys, 
as  they  looked  at  the  yard-arm,  indulged  in 
laughter  and  derision.  I  still  earnestly  de- 
sired that  Mr.  Spencer  should  be  buried  as 
officers  usually  are,  in  a  coffin.  I  ordered 
one  to  be  forthwith  made  from  a  portion  of 
the  birth-deck;  but  Lieut.  Gansevoort  hav- 
ing offered  to  relinquish  two  mess-chests, 
used  instead  of  a  ward-room  stores-room, 
they  were  soon  converted  into  a  substantial 
coffin. 

"  When  the  hour  usually  given  to  the 
crew's  dinner  was  over,  the  watch  was  set 
and  the  bodies  lowered  from  the  yard-arms 
and  received  by  the  messmates  of  the  de- 
ceased, to  be  decently  laid  out  for  burial, 
the  midshipmen  assisting  in  person.  When 
all  was  ready,  the  first  lieutenant  invited  me 
to  accompany  him,  to  see  that  these  duties 
had  been  duly  performed.  Mr.  Spencer  was 
laid  out  on  the  starboard  arm-chest,  dressed 
in  complete  uniform,  except  the  sword, 
which  he  had  forfeited  the  right  to  wear. 
Further  forward,  the  two  seamen  were  also 
laid  out  with  neatness.  I  noticed  with  pain 
that  the  taste  of  one  of  the  snilors  had  led 
him  to  bind  the  hands  of  Cromwell  with  a 
riband,  having  on  it,  in  gold  letters,  the  name 
of  that  chivalrous  Somers  who  had  died  a 
self-devoted  victim  in  the  cause  of  his  coun- 
try. But  that  particular  badge  had  been 
dishonored  by  the  treason  of  its  wearer, 
and  it  was  suffered  to  remain.  Traces  of  a 
sabre-cut  were  visible  on  his  forehead,  and 
on  the  removal  of  his  hair,  four  of  five  more 
were  discovered,  indicating  that  he  had 
been  where  wounds  had  been  given  and 
received.  Cromwell,  by  his  own  admis- 
sion, had  been  in  a  slaver,  and  had  been  an 
inmate  of  the  Moro  Castle  at  Havana.  It 
was  the  general  impression  of  the  honest 
part  of  the  crew,  that  he  had  already  been 
a  pirate.  He  only  could  answer  to  the  de- 
scription of  the  individual  alluded  to  by  Mr. 
Spencer  as  having  been  *  already  in  the 
business.' 

"  At  this  moment  a  sudden  squall  sprung 
up,  making  it  necessary  to  reduce  sail ;  it 
was  attended  by  heavy  rain,  and  tarpaulins 
were  hastily  thrown  over  the  corpses.  The 
squall  over,  the  sailors  were  sewed  up  in 
their  hammocks — the  body  of  Mr.  Spencer 
was  placed  in  the  coffin.  The  three  corpses, 


arranged  according  to  rank,  Mr.  Spencer 
aft,  were  placed  along  the  deck.  All  hands 
were  now  called  to  bury  the  dead ;  the  pro- 
cession was  formed  according  to  rank  ;  re- 
versed of  the  colors  which  had  continued  to 
fly,  the  ensign  was  lowered  to  half-mast. 
Before  the  corpses  had  been  placed  on  the 
lee,  hammock-sails  were  ready  for  lowering 
overboard.  The  night  had  already  set  in  ; 
all  the  battle-lanterns,  and  the  other  lanterns 
in  the  vessel,  were  lighted  and  distributed 
among  the  crew.  Collected,  with  their 
prayer-books,  on  the  booms,  in  the  gang- 
ways, and  lee-quarter-boat,  the  service  was 
then  read,  the  responses  audibly  and  de- 
voutly made  by  the  officers  and  crew,  and 
the  bodies  consigned  to  the  deep.  This 
office  was  closed  with  that  prayer,  so  appro- 
priate to  our  situations,  appointed  to  be  read 
in  our  ships-of-war — '  Preserve  us  from  the 
dangers  of  the  sea  and  from  the  violence  of 
enemies,  that  we  may  be  a  safeguard  unto 
the  United  States  of  America,  and  a  secu- 
rity for  such  as  pass  on  the  seas  upon  their 
lawful  occasions  ;  that  the  inhabitants  of 
our  land  may  in  peace  and  quietness  serve 
thee,  our  God  :  and  that  we  may  return  in 
safety  to  enjoy  the  blessings  of  the  land 
with  the  fruit  of  our  labor,  and  with  a  thank- 
ful remembrance  of  thy  mercies,  to  praise 
and  glorify  thy  holy  name,  through  Jesus 
Christ,  our  Lord.'  In  reading  this,  and 
recollecting  the  uses  to  which  the  Somers 
had  been  destined,  as  I  now  find,  before 
she  quilted  the  United  States,  I  could  not 
but  humbly  hope  that  divine  sanction  would 
not  be  wanting  to  the  deed  of  that  day. 

"  As  the  last  transaction  connected  with 
this  subject,  I  may  mention  that  on  the  fol- 
lowing Sunday,  being  the  4th  December, 
after  the  laws  for  the  government  of  the 
navy  had  been  read,  according  to  our  inva- 
riable custom  in  the  Somers,  on  the  first 
Sunday  of  the  month,  I  took  occasion  to 
draw  from  the  past  history  and  example  of 
the  criminals  whose  execution  they  had  so 
recently  beheld,  all  the  useful  lessons  that 
they  afforded,  to  win  back  to  the  paths  of 
duty  and  virtue  the  youthful  crew  which 
they  had  been  so  instrumental  in  leading 
astray.  I  showed  how  the  leader  in  the 
projected  mutiny  had  turned  aside  from  the 
example  of  his  honored  parents,  and  tram- 
pled on  the  wise  counsels  and  solemn  warn- 
ings which  had  been  lavished  on  him.  In 
the  Bible  of  poor  Small,  I  had  found  a  letter 


NAVAL  COURT  MARTIAL. 


209 


to  him  from  his  aged  mother,  filled  with 
affectionate  endearment  and  pious  counsel. 
She  expressed  the  joy  with  which  she  had 
learned  from  him  that  he  was  so  happy  on 
board  the  Somers  (at  that  time  Mr.  Spencer 
had  not  joined  her),  that  no  grog  was  served 
on  board  of  her.  Within  the  folds  of  this 
sacred  volume,  he  had  preserved  a  copy  of 
verses,  taken  from  the  '  Sailor's  Magazine,' 
enforcing  the  value  of  the  Bible  to  seamen. 
I  read  these  verses  to  the  crew.  Small 
had  evidently  valued  his  Bible,  but  he  could 
not  resist  temptation.  I  urged  upon  the 
youthful  sailors  to  cherish  their  Bibles  with 
a  more  entire  love  than  Small  had  done — to 
value  their  prayer-books  also ;  they  would 
find  in  them  a  prayer  for  every  necessity, 
however  great — a  medicine  for  every  ail- 
ment of  the  mind.  I  endeavored  to  call  to 
their  recollection  the  terror  with  which  the 
three  malefactors  had  found  themselves  sud- 
denly called  to  enter  the  presence  of  an 
offended  God.  No  one  who  had  witnessed 
that  scene,  could  for  a  moment  believe  even 
in  the  existence  of  such  a  feeling  as  honest 
atheism — a  disbelief  in  the  existence  of  a 
God.  They  should  also  remember  that  Mr. 
Spencer,  in  his  last  moments,  had  said  that 
'  he  had  wronged  many  people,  but  chiefly 
his  parents.'  From  these  two  circumstan- 
ces they  might  draw  two  useful  lessons — a 
lesson  of  filial  piety,  and  a  piety  toward 
God :  with  these  two  principles  for  their 
guide,  they  could  never  go  astray.  In  con- 
clusion I  told  them  that  they  had  shown 
that  they  could  give  cheers  for  their  coun- 
try— they  should  now  give  cheers  for  their 
God,  for  they  would  do  this  when  they  sang 
praises  to  his  name  (the  colors  were  now 
hoisted) ;  and,  above  the  American  ensign, 
the  only  banner  to  which  it  may  give  place, 
•the  banner  of  the  cross.  The  hundredth 
Psalm  was  now  sung  by  all  the  officers  and 
crew,  after  which  the  usual  service  followed. 
When  it  was  over,  I  could  not  avoid  con- 
trasting the  spectacle  presented  on  that  day 
by  the  Somers,  with  what  it  would  have  been 
.  had  she  been  in  pirate's  hands. 

"  But  on  this  subject  I  forbear  to  enlarge  ; 
I  would  not  have  described  this  scene  at  all, 
so  different  from  the  ordinary  topics  of  an 
official  communication,  but  for  the  unwonted 
circumstances  in  which  we  were  placed,  and 
the  marked  effect  which  it  produced  on  the 
ship's  company — even  on  those  deeply  guilty 
members  of  it  who  sat  manacled  behind  me. 
27 


and  that  it  was  considered  to  have  done 
much  toward  restoring  the  allegiance  of  the 
crew. 

"  In  closing  this  report,  a  pleasing  yet 
solemn  duty  devolves  upon  me,  which  I  feel 
unable  adequately  to  fulfil — to  do  justice  to 
the  noble  conduct  of  every  one  of  the  offi- 
cers of  the  Somers,  from  the  first  lieutenant 
to  the  commander's  clerk,  who  has  also, 
since  her  equipment,  performed  the  duty 
of  midshipman.  Throughout  the  whole 
duration  of  the  difficulties  in  which  we  have 
been  involved,  their  conduct  has  been  cour- 
ageous, determined,  calmly  self-possessed — 
animated  and  upheld  always  by  a  lofty  and 
chivalrous  patriotism,  perpetually  armed  by 
day  and  by  night,  waking  and  sleeping,  with 
pistols  often  cocked  for  hours  together.  The 
single  accidental  explosion  which  took  place 
was  from  a  very  delicate  weapon,  a  repeat- 
ing pistol,  in  the  hand  of  the  first  lieuten- 
ant, when  I  was  arresting  Cromwell  in  the 
night.  I  can  not  forbear  to  speak  particu- 
larly of  Lieut.  Gansevoort.  Next  to  me  in 
rank  on  board  the  Somers,  he  was  my  equal 
in  every  exertion  to  protect  and  defend  her. 
The  perfect  harmony  of  our  opinions,  and 
of  our  views  of  what  should  be  done,  on 
each  new  development  of  the  dangers  that 
menaced  the  integrity  of  command,  gave  us 
a  unity  of  action  that  added  materially  to 
our  strength.  Never  since  the  existence 
of  our  navy  has  a  commanding  officer  been, 
more  ably  and  zealously  seconded  by  his 
first  lieutenant.  Where  all,  without  excep- 
tion, have  behaved  admirably,  it  might  seem 
invidious  to  particularize  ;  yet  I  can  not  re- 
frain from  calling  your  attention  to  the  noble 
conduct  of  Purser  H.  W.  Heiskill,  and  of 
Passed  Assistant-Surgeon  R.  W.  Leecock, 
for  the  services  which  they  so  freely  yield- 
ed beyond  the  sphere  of  their  regular  du- 
ties. Both  moreover  were  in  delicate  health. 
Assistant-Surgeon  Leecock  was,  indeed, 
in  no  condition  to  go  to  sea  when  he  joined 
the  Somers.  He  had  recently  returned  in 
the  Dolphin  from  the  coast  of  Africa,  where 
his  constitution  had  been  completely  shat- 
tered by  a  fever  contracted  in  the  river 
Muny.  He  came  however  to  his  duty,  de- 
termined and  apparently  likely  to  die  at  his 
post.  He  has  partially  recovered,  but  is 
still  in  delicate  health.  Both  he  and  Mr. 
Heiskill  cheerfully  obeyed  my  orders  to  go 
perpetually  armed,  to  keep  a  regular  watch, 
to  guard  the  prisoners ;  the  worst  weather 


210 


PROCEEDINGS  OF  THE 


could  not  drive  them  from  their  posts,  or 
draw  from  them  a  murmur. 

"  I  respectfully  request  that  the  thanks 
of  the  navy  department  may  be  presented 
to  all  the  officers  of  the  Somers,  for  their 
exertions  in  the  critical  situation  in  which 
she  has  been  placed.  It  is  true  that  they 
have  but  performed  their  duty,  but  they 
have  performed  it  with  fidelity  and  zeal. 

"  If  it  shall  be  proved  that,  when  sol- 
emnly called  upon  by  me,  they  gave  an  er- 
roneous opinion,  that  opinion  involved  no 
official  responsibility — the  opinion  was 
theirs ;  the  opinion  also,  the  act  which  fol- 
lowed it,  and  the  responsibility,  were  mine  ; 
and  I  fully  meet  that  responsibility,  trusting 
to  the  consciousness  of  rectitude  within  my 
own  bosom,  which  has  never  for  one  mo- 
ment forsaken  me  or  wavered. 

"  I  respectfully  submit,  that  Mr.  J.  \V. 
Wales,  by  his  coolness,  his  presence  of 
mind,  and  his  fidelity,  has  rendered  to  the 
American  navy  a  memorable  service.  I 
had  a  trifling  difficulty  with  him,  not  dis- 
creditable to  his  character,  on  the  previous 
cruise  to  Porto  Rico.  On  that  account  he 
was  sought  out  and  tampered  with ;  but  he 
was  honest,  patriotic,  humane  ;  he  resisted 
temptation,  was  faithful  to  his  flag,  and  was 
instrumental  in  saving  it  from  dishonor.  A 
pursership  in  the  navy,  or  a  handsome  pe- 
cuniary reward,  would  after  all  be  an  in- 
considerable recompense,  compared  with 
the  magnitude  of  his  services.  Of  the  con- 
duct of  Sergeant  Michael  H.  Garty,  I  will 
only  say  it  was  worthy  of  the  noble  corps 
to  which  he  has  the  honor  to  belong ;  con- 
fined to  his  hammock  by  a  malady  which 
threatened  to  be  dangerous,  at  the  moment 
"when  the  conspiracy  was  discovered,  he 
rose  upon  his  feet  a  well  man.  Through- 
out the  whole  period,  from  the  day  of  Mr. 
Spencer's  arrest  to  the  day  after  our  arrival, 
and  until  the  removal  of  the  mutineers,  his 
conduct  was  calm,  steady,  and  soldierlike. 
But  when  his  duty  was  done,  and  health 
was  no  longer  indispensable  to  its  perform- 
ance, his  malady  returned  upon  him,  and  he 
is  still  in  his  hammock.  In  view  of  this 
fine  conduct,  I  respectfully  recommend  that 
Sergeant  Garty  be  promoted  to  a  second 
lieutenancy  in  the  marine  corps.  Should  I 
pass  without  dishonor  through  the  ordeal 
which  probably  awaits  me,  and  attain  in 
due  time  to  the  command  of  a  vessel  enti- 
tled to  a  marine  officer,  I  ask  no  better  for- 


tune than  to  have  the  services  of  Sergeant 
Garty  in  that  capacity. 

"  I  further  respectfully  recommend  that 
Boatswain's-Mates,  Oliver  H.  Browning  and 
William  Collins,  and  Captain-of-the-Fore- 
castle  Charles  Stewart,  may  be  appointed 
boatswains  in  the  navy  ;  that  Gunner's-Mates 
Henry  King  and  Andrew  Anderson,  and 
Quartermaster  Charles  Rogers,  be  appoint- 
ed gunners,  and  Thomas  Dickerson  a  car- 
penter, in  the  navy.  I  believe  that  nearly 
all  of  them  would  make  excellent  forward 
officers.  I  know  that  all  of  them,  without 
exception,  would  find  on  the  navy  register 
associates  inferior  to  themselves  ;  if  pro- 
moted and  found  unworthy,  they  will  quietly 
fall  back  into  the  stations  from  which  they 
were  advanced.  It  would  be  remembered 
in  the  navy,  that  in  the  only  mutiny  which 
has  been  regularly  organized  in  it,  the  stern 
law  of  necessity  had,  in  the  opinion  of  the 
commanding  officer,  compelled  him  to  hang 
the  ringleaders  at  the  yard-arm;  that  the 
petty  officers,  who  had  been  found  faithful 
to  their  colors,  had  been  promoted ;  it  will 
not  be  recorded  whether  they  subsequently 
failed  by  sobriety  and  good  conduct  to  sus- 
tain themselves  in  the  honorable  elevation 
to  which  their  fidelity  had  raised  them. 

"  If  I  shall  be  deemed  by  the  navy  de- 
partment to  have  any  merit  in  preserving 
the  Somers  from  those  treasonable  toils,  by 
which  she  had  been  surrounded,  since  be- 
fore her  departure  from  the  United  States 
I  respectfully  request  that  it  may  accrue 
without  reservation,  to  the  benefit  of  Neph 
ew  0.  H.  Perry,  now   clerk  on  board  th 
Somers,  and  that  his  name  may  be  placec 
on  the  register,  in  the  number  left  vacan 
by  the  treason  of  Mr.  Spencer. 

"  I  think,  under  the  peculiar  circumstan 

ces  of  the  case,  an  act  of  Congress,  if  ne 

cessary,  might  be  obtained  to  authorize  th 

i  appointment ;  throughout  the  whole  perioc 

I  of  his  service  on  board  the  Somers,  he  ha 

j  performed  zealously,  and  with  ability,  the 

duty  of  midshipman,  and  since  the  discover} 

of  the  mutiny,  with  an  energy  and  courage 

not  unworthy  of  his  name.     I  pledge  my 

self  to  his  entire  worthiness.     If  he  were 

not  worthy,  the  navy  is  the  last  professioj 

in  whose  lists  I  would  wish  to  see  his  nam-; 

enrolled. 

"  For  myself,  I  only  ask  that  in  whateve 

proceedings  it  may  be  necessary  to  instituK 

1  against  me,  as  I  have  considered  before  al 


NAVAL  COURT  MARTIAL. 


211 


things  the  honor  of  my  country  and  the 
sanctity  of  its  flag,  my  own  honor  may  also 
meet  with  the  consideration.  I  ask  only 
that  I  may  not  be  deprived  of  my  commam 
until  proved  to  be  unworthy  of  it. 

"  I  have  the  honor  to  be,  very  respect- 
fully your  most  obedient, 

"  ALEX.  SLIDELL  MACKENZIE, 

"  Commander  U.  S.  N. 
"  Hon.  A.  P.  UPSHUR, 

"  Secretary  of  the  Navy, 

"  Washington." 


IT.  S.  NAVY  YARD,       > 
Brooklyn,  March  18,  1843.  \ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "        Page, 

"       Bolton,  "        Gwinn, 

"       Turner,  Wyman, 

"       Sloat,          Com'dr  Ogden, 
"       Storer,  "        Shubrick, 

Members ; 

Wm.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alex.  Slidell 
Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

The  judge  advocate  not  having  finished 
the  reading  of  Commander  Mackenzie's  re- 
port yesterday,  the  reading  of  it  was  resumed, 
and  closed  to-day. 

Midshipman  Hays  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Were  you  officer  of  the  deck  at  the 
time  of  carrying  away  of  the  mast  ? 

A.  Yes,  sir.  •, 

Q.  What  order  did  you  give  before  the 
mast  went  ? 

A.  I  gave  the  order  to  let  go  the  weather- 
main-royal  brace. 

Q.  Did  any  one  give  afterward  a  con- 
trary order  ? 

A.  No,  sir  ;  not  that  I  heard. 

Q.  Did  you  see  Mr.  O.  H.  Perry  sent 
for  by  the  commander,  immediately  after  the 
mast  went  ? 

A.  The  commander  sent  me  forward  with 
a  message  to  Mr.  Perry ;  I  don't  know  that 
he  sent  for  him. 

Q.  What  was  the  message  ? 

A.  He  told  me  to  tell  Mr.  Perry  that  by 


his  inattention,  he  had  allowed  some  one 
to  haul  on  the  brace,  and  carry  away  the 
mast. 

Q.  Did  the  commander  inquire  of  you, 
what  order  you  had  given  ? 

A.  No,  sir,  he  was  on  deck ;  he  told  me 
himself  to  have  the  weather-main-royal  brace 
let  go. 

Q.  Did  the  commander  give  you  any  or- 
der to  take  a  small  pull  of  the  weather-main- 
royal  brace  ? 

A.  No,  sir,  I  gave  the  orders  myself;  or- 
ders were  given  to  keep  the  weather-after 
braces  always  slack. 

Q.  Did  you  hear  Mr.  O.  H.  Perry  state 
that  he  understood  the  order  to  be,  to  haul, 
on  the  weather-main-royal  brace  ? 

A.  Not  at  that  time,  I  did  not;  I  heard 
him  say  so  after  we  arrived  in  port. 

Q.  Did  you  see  the  commander  come 
from  the  cabin  in  uniform  and  announce  his 
doom  to  Mr.  Spencer  ? 

A.  Yes,  sir. 

Q.  How  far  were  you  from  the  parties  ? 

A.  I  was  standing  on  the  pump-well 
hatch  ;  about  thirty  feet. 

Q.  What  was  the  behavior  of  Mr.  Spen- 
cer, till  the  captain  left  him  to  go  to  Crom- 
well and  Small  ? 

A.  I  don't  know ;  he  had  his  head  on 
the  arm-chest,  and  raised  it  up  when  the 
commander  spoke  to  him. 

Q.  Did  you  see  him  on  his  knees  ? 

A.  No,  sir. 

Q.  Did  you  see  Mr.  Spencer  on  his  knees 
that  day  ? 

A .  No,  sir ;  not  to  my  recollection. 

Q.  Were  you  looking  at  the  parties  when 
the  commander  spoke  to  Mr.  Spencer,  till 
le  went  to  Cromwell  ? 

A.  Yes,  sir;  looking  at  them  all  the 
time. 

Q.  Did  you  see  Mr.  Spencer  in  tears 
that  day  ? 

A.  Yes,  sir ;  I  believe  he  was  crying 
after  his  doom  was  announced  to  him. 

Q.  Did  you  see  him  reading  in  the  Bible 
or  Prayer-book? 

A.  No,  sir. 

Q.  When  the  commander  first. went  to 
Mr.  Spencer,  did  you  notice  the  scene  with 
interest  ? 

A.  Yes,  sir. 

Q.  How  soon  did  the  commander  order 
pens  and  paper,  after  he  returned  to  Mr. 
Spencer  ? 


-212 


PROCEEDINGS  OF  THE 


A.  I  don't  recollect;  I  did  not  remain  in 
'my  first  position ;  I  think  I  went  in  the 
starboard  gangway. 

Q.  How  soon  afterward  did  you  see  Mr. 
Spencer  ? 

A.  I  could  see  him  all  the  time  from  the 
'starboard  gangway. 

Q.  Did  you  see  the  writing  commence  ? 

A.  I  don't  recollect  whether  I  did  or  not ; 
I  saw  the  commander  conversing  with  Mr. 
Spencer,  and  writing. 

Q.  How  long  did  the  writing  last  ? 

A.  Ten  or  fifteen  minutes. 

Q.  What  was  the  next  thing,  after  the 
writing  stopped  ? 

A.  I  don't  recollect ;  I  was  not  looking 
at  Mr.  Spencer  constantly. 

BY  CAPTAIN  GWINN. 

Q.  During  the  time  Commander  Mac- 
kenzie was  speaking  with  Mr.  Spencer, 
Cromwell,  and  Small,  were  you  officer  of 
the  deck  ?  and  if  so,  did  not  your  duties 
draw  your  attention  occasionally  from  them? 

A.  I  was  not  officer  of  the  deck. 

BY  THE  JUDGE  ADVOCATE. 

Q.  How  soon  after  the  writing  stopped, 
was  Mr.  Spencer  carried  forward  to  the 
gangway  ? 

A.  That  I  don't  know  ;  I  know  there  was 
some  writing  done  ;  I  don't  know  how  soon 
after  he  was  taken  to  the  gangway. 

Q.  After  the  writing  stopped,  where  did 
the  commander  go  ? 

A.  He  remained  on  the  quarter-deck. 

Q.  What  was  the  commander  then  do- 
ing ? 

A.  I  don't  recollect;  I  saw  him  in  con- 
versation with  the  1st  lieutenant  part  of  the 
time. 

Q.  What  was  Mr.  Spencer  about,  after 
the  writing  stopped  ? 

A.  Sitting  on  the  camp-stool,  his  face 
buried  in  his  hands. 

Q.  Did  you  have  any  conversation  at  all 
with  Mr.  Spencer,  from  the  time  of  his  ar- 
rest to  his  execution  1 

A.  None  ;  only  to  attend  to  what  he  re- 
quired— water,  food,  &c. 

Q.  Has  Peter  Tyson,  one  of  the  boys  of 
your  crew,  deserted,  since  the  arrival  of  the 
Somers  ? 

A.  No,  sir. 

Q.  Has  Inglis  deserted  in  that  time  ? 

A.  Yes,  sir,  and  retaken. 

Q.  Did  you  hear  the  conversation  be- 


tween the  commander  and  Small,  when  Mr. 
Spencer  was  arrested  ? 

A.  No,  sir  ;  I  was  not  on  the  quarter- 
deck. 

Q.  Did  you  notice  the  employment  of 
Mr.  Spencer,  the  day  of  his  arrest  ? 

A.  No,  sir ;  I  noticed  he  was  absent 
from  the  steerage  during  the  greater  part 
of  the  day. 

Q.  Had  you  any  conversation  with  any 
of  the  executed  persons,  from  the  time  of 
their  arrest  till  the  execution? 

A.  No,  sir. 

Q.  Did  you  hear  Mr.  Spencer  cry  out  to 
Wales,  the  night  before  his  arrest,  "  What 
the  devil  are  you  cruising  about  around 
there,"  or  words  to  that  effect  ? 

A.  No,  sir  ;  I  did  not. 

Q.  Did  you  see  Mr.  Spencer  turn  in  that 
night  ? 

A.  I  don't  recollect. 

Q.  Till  midnight  of  that  night,  were  you 
in  the  steerage  ? 

A.  Yes,  sir ;  I  think  I  had  the  morning 
watch. 

Q.  Can  you  recollect  what  Mr.  Spencer 
was  about,  in  the  steerage,  that  night  ? 

A.  No,  sir;   I  can  not  recollect. 

Q.  When  did  you  first  hear  the  mutin 
was  arranged  to  break  out,  before  your  ai 
rival  at  St.  Thomas  ? 

A.  I  don't  recollect  positively  to  hav 
heard  that  it  was  to  break  out  before  ou 
arrival  at  St.  Thomas. 

Q.  When  did  you  first  see  the  dirk  o 
Wilson  ? 

A.  Shortly  after  we  left  Monrovia,  I  sa.\ 
him  have  it  when  working ;  I  don't  knov 
that  he  used  it. 

Q.  When  did  you  first  know  how  tha 
dirk  had  come  aboard  ? 

A.  I  don't  know  how  it  came  aboard  ; 
mow  it  was  bought  in  Africa  ;  I  don't  know 
who  by. 

Q.  Before  the  letter  of  the  officers  wa 
sent  to  the  captain,  did  Lieut.  Gansevoor 
come  into  the  ward-room,  and  say  the  cap 
ain  was  anxious  to  get  it,  or  words  to  tha 
effect  ? 

A.  I  don't  recollect. 

Q.  Do  you  know  whether,  on  the  nigh 
of  the  30th,  the  station  bill  for  the  process 
of  execution  was  made  out  ? 

A.  No,  I  do  not;  they  were  mustered  a 
he  whips  by  the  watch  bill  of  the  ship,  anc 
hat  was  made  out  after  we  left  New  York 


NAVAL  COURT  MARTIAL. 


213 


Q.  Have  you  heard  Mr.  Spencer  fre- 
quently complain  that  the  commander  had 
hurt  his  feelings  ? 

A.  Yes,  sir ;  I  have  heard  him  say  fre- 
quently that  the  commander  had  censured 
him,  he  appeared  very  angry. 

CROSS-EXAMINED  BY  COMD'il  MACKENZIE. 

Q.  When  Mr.  Spencer  thus  complained 
that  the  commander  had  censured  him,  and 
hurt  his  feelings,  did  he  state  what  had  oc- 
curred ? 

A.  No,  sir  ;  I  don't  recollect  that  he  did. 

Q.  How  often  have  you  known  the  com- 
mander to  reprimand  Mr.  Spencer?  and  for 
>  what  ? 

A.  I  have  never  seen  him  do  it ;  I  have 
heard  Mr.  Spencer  say  it. 

Q.  Has  the  commander  ever  reproved 
you  when  dissatisfied  with  the  performance 
of  any  particular  duty  ?  how  often  ? 

A.  He  has  very  frequently. 

Q.  On  one  occasion  after  the  Somers  left 
the  coast  of  Africa,  and  fell  in,  during  squal- 
ly weather,  with  ^a  vessel  having  the  ap- 
pearance of  a  cruiser,  and  the  Somers  was 
cleared  for  action,  did  you  notice  anything 
particular  in  the  conduct  of  Cromwell  ? 

A.  Yes,  sir,  his  manner  I  considered 
mutinous  ;  he  said  there  was  a  d — d  sight 
of  humbug  about  nothing  ;  he  said  he  had 
been  aboard  of  a  vessel  where  shot  had  been 
fired,  and  not  half  so  much  noise  about  it : 
this  was  at  quarters. 

Q.  Did  you  notice  anything  particular  in 
the  demeanor  of  Cromwell  when  Mr.  Spen- 
cer was  confined  ? 

A.  He  appeared  exceedingly  uneasy — 
indeed  assumed  the  utmost  indifference  to 
what  was  going  on  on  the  quarter-deck; 
his  attention  was  never  directed  aft  at  all, 
while  all  were  very  eager  to  see  what  was 
going  on ;  I  thought  he  was  much  relieved 
when  I  ordered  him  below  to  move  the 
chest  the  irons  were  in. 

Q.  Were  there  not  preventer-braces  lead- 
ing aft  from  the  main  and  main-topsail-yards, 
and  were  not  all  the  after-braces  leading 
forward  repeatedly  ordered  to  be  kept  slack, 
and  so  kept  perpetually  slack  while  running 
down  the  trades  ? 

A.  Yes,  sir,  the  weather-after-braces  lead- 
ing forward  were  ordered  to  be  kept  slack. 

Q.  Had  not  these  orders  to  keep  the  af- 
ter-braces leading  forward,  and  particularly 
those  of  the  light  yards,  slack,  been  so  often 


repeated  as  to  make  it  known  to  the  whole 
crew  that  great  anxiety  was  felt  for  the  light 
masts  and  yards,  lest  there  should  be  any 
undue  strain  on  them  ? 

A .  The  order  was  repeatedly  given  and 


Q.  After  it  was  discovered  that  they 
were  hauling  on  the  weather-main-royal- 
brace,  instead  of  slackening  it,  did  not  the 
commander  betray  great  anxiety  lest  some- 
thing should  be  carried  away,  or  lest  Gage- 
ly  should  be  jerked  overboard  ? 

A.  He  did. 

Q.  Were  repeated  orders  given  by  you 
and  by  the  commander  to  avast  hauling,  to 
belay  the  brace  and  to  slack  it  ? 

A.  I  gave  the  order  repeatedly,  loudly, 
and  distinctly,  to  let  it  go  ;  the  commander 
repeated  it. 

Q.  Did  the  hauling  continue  after  these 
orders  had  been  frequently  repeated  ? 

A.  Yes,  sir,  the  brace  appeared  to  be 
hauled  on  violently. 

Q.  How  soon  after  did  the  mast  carry 
away  ? 

A.  I  think  thirty  or  forty  seconds. 

Q.  Who  did  you  notice  at  the  mast-head 
immediately  after  the  carrying  away  of  the 
mast  ? 

A.  I  saw  Wilson,  Cromwell,  Small,  Ged- 
ney,  Golderman. 

Q.  Did  they  seem  zealous  in  clearing 
the  wreck  1  what  was  their  manner  ? 

A.  They  were  doing  nothing  aloft ;  Wil- 
son, particularly,  was  standing  on  the  top- 
sail-yard. 

Q.  Did  you  notice  anything  particular  in 
the  demeanor  of  Mr.  Spencer  while  Crom- 
well, Small,  Wilson,  and  others,  were  at 
the  mast-head  ? 

A.  His  eyes  were  constantly  fixed  aloft. 

Q.  Did  you  notice  anything  particular  in 
the  demeanor  of  Wilson  after  the  arrest  of 
Mr.  Spencer,  Cromwell,  and  Small,  in  the 
steerage  or  elsewhere  ? 

A.  I  noticed  that  he  was  insubordinate 
after  the  arrest  of  Mr.  Spencer,  and  saw 
him  looking  anxiously  into  the  wardroom 
and  watching  where  I  put  my  pistols,  the 
night  before  his  (Wilson's)  arrest. 

Q.  While  Mr.  Spencer,  Cromwell,  and 
Small,  were  in  confinement,  did  you  notice 
anything  particular  in  the  demeanor  of  M'- 
Kinley,  Green,  M'Kee,  Neville,  Sullivan, 
or  any  others  of  the  crew  not  in  confine- 
ment ? 


214 


PROCEEDINGS  OF  THE 


A.  I  saw  these  talking  together  in  groups ; 
they  always  managed  to  come  aft  with  their 
victuals,  apparently  for  the  purpose  of  con- 
versing with  the  prisoners. 

Q.  How  was  Mr.  Spencer  sitting  at  the 
time  the  commander  announced  to  him  his 
fate? 

A.  With  his  back  turned  forward,  lean- 
ing on  the  arm-chest. 

Q.  Might  not  Mr.  Spencer  have  tilted  his 
camp  stool  forward,  without  ceasing  to  sit 
on  it,  so  as  to  have  assumed  a  kneeling  pos- 
ture, while  praying  at  various  times,  subse- 
quent to  his  doom  being  announced  to  him, 
without  your  now  remembering  it  ? 

A.  He  might  have  done  so. 

Q.  What  was  the  subordination  of  the 
crew  of  the  Somers,  from  her  departure 
from  New  York,  down  to  the  time  of  the 
discovery  of  the  mutiny?  state  what  change, 
if  any,  took  place  in  it. 

A.  I  observed  it  was  good  up  to  our  ar- 
rival at  Madeira,  it  grew  worse  until  we 
got  to  Porto  Pray  a  and  Mesurado,  and 
gradually  worse  until  Wilson's  arrest. 

BY  CAPTAIN  WYMAN. 

Q.  Were  the  remarks  of  Cromwell  at 
quarters,  on  the  occasion  you  have  just 
stated,  at  the  time  of  seeing  the  cruiser, 
reported  to  the  commander  or  executive 
officer  \ 

A.  No,  sir,  I  did  not  report  it ;  the  re- 
mark was  not  addressed  to  me — it  was  in 
niy  hearing. 

BY    COMMANDER    MACKENZIE. 

Q.  Subsequent  to  the  confinement  of  Mr. 
Spencer,  and  down  to  the  execution,  what 
was  the  state  of  subordination  of  the  crew, 
and  what  the  facility  of  carrying  on  the 
necessary  duties  of  the  vessel  ? 

A.  The  subordination  was  very  bad,  the 
men  were  very  surly ;  an  order  was  never 
executed  until  it  had  been  repeated  several 
times. 

Q.  What  was  the  state  of  subordination 
immediately  after  the  execution  ? 

A.  Authority  was  immediately  restored  ; 
the  men  performed  their  duty  very  cheer- 
fully. 

Q.  Do  you  believe  that  the  Somers  could 
have  been  taken  into  any  port  by  her  offi- 
cers if  the  execution  had  not  taken  place  ? 

A.  No,  I  do  not. 


BY  THE  JUDGE  ADVOCATE. 

Q.  Who  was  nearest  the  brace,  Mr.  O. 
H.  Perry  or  yourself,  on  the  day  the  mast 
went? 

A.  I  was  on  the  quarter-deck,  Mr.  Perry 
was  on  the  forecastle ;  Mr.  Perry  was 
nearest. 

Q.  Would  you  think  a  man  whose  hands 
and  feet  were  ironed  could  tilt  a  camp  stool 
he  was  sitting  on,  so  as  to  get  on  his  knees, 
and  right  it  again,  and  do  this  several  times 
without  your  having  noticed  it  ? 

A.  Yes,  I  think  he  could,  very  easily. 

Q.  Did  you  see  anything  of  this  kind 
go  on? 

A.  No,  sir,  I  did  not. 

The  testimony  of  Midshipman  Hays  was 
here  closed ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Alexander  M'Kee  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 
• 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

What  is  your  name  ?  age  ?  were  you  in 
the  Somers  in  her  last  cruise,  and  in  what 
capacity  ? 

A.  My  name,  Alexander  M'Kee ;  my 
age,  going  on  eighteen ;  I  was  on  board 
the  Somers  in  her  last  cruise  as  second- 
class  apprentice. 

Q.  When  did  you  first  hear  of  the  mu- 
tiny ? 

A.  On  the  Monday  after  Mr.  Spencer's 
arrest,  I  believe  the  commander  addressed 
the  crew  and  said  there  was  such  a  plot  on 
board. 

Q.  Had  you  ever  spoken  with  Mr.  Spen- 
cer or  any  other  about  taking  the  brig  ? 

A.  No,  sir. 

Q.  When  was  you  first  arrested  ?  state 
what  passed. 

A.  I  was  called  aft  the  mainmast  on  the 
30th  of  November  ;  the  commander  said  he 
did  not  think  it  worth  while  to  put  me  in 
irons  then  ;  he  told  me  to  go  to  quarters  ; 
I  think  he  then  spoke  to  Mr.  Gansevoort,  I 
am  not  quite  certain  ;  he  called  me  aft  and 
then  put  me  in  irons  :  I  was  only  put  in 
double  irons  at  first. 

Q.  After  the  arrest  of  Mr.  Spencer  were 
you  punished  ?  state  all  about  it  ? 

A.  Yes,  sir,  I  was  ;  it  was  my  turn  to  go 
to  the  wheel  on  Sunday  afternoon  ;  I  sent 
a  boy  (Miller)  to  the  wheel  in  my  place  for 


NAVAL  COURT  MARTIAL. 


215 


three  quarters  of  an  hour  ;  I  then  went  aft 
and  took  my  place  at  the  wheel ;  the  cap- 
tain then  asked  me  if  it  was  my  trick,  I 
told  him,  "  Yes,  sir ;"  then  asked  me  the 
reason  why  I  did  not  take  it  at  the  time  ap- 
pointed for  the  relief;  I  then  stated  that 
Green  was  pricking  some  India  ink  on  me 
and  had  not  finished,  and  I  asked  a  boy  to 
take  my  place  until  it  was  finished  ;  the 
captain  then  ordered  me  to  be  put  on  the 
morning  report  for  disobedience  of  orders, 
and  on  Monday  I  was  punished. 

Q.  Have  you  ever  been  punished  on  the 
Somers  before  ? 

A.  No,  sir. 

Q.  Where  was  this  India-ink  operation 
going  on  ? 

A.  On  the  forecastle. 

Q.'What  time  of  the  day,  and  who  was 
by? 

A.  It  was  between  twelve  and  four 
o'clock  ;  I  think  Mr.  O.  H.  Perry  saw  it, 
and  several  of  the  apprentices. 

Q.  Was  it  not  against  orders  for  you  to 
send  any  one  else  to  take  your  trick  ? 

A.  I  did  not  know  about  sending  any 
one  to  take  my  trick,  but  I  knew  that  all 
hands  had  to  take  a  trick. 

Q.  Had  you  ever  known  any  one  before 
to  get  another  to  take  the  whole  or  part  of 
his  trick  ? 

A.  Yes,  sir ;  the  boys  have  taken  my 
trick  before. 

Q.  When  and  who  ? 

A.  Wetmore  and  Sullivan,  some  time 
before  that. 

Q.  Where  were  you  placed  on  the  day 
of  execution  ? 

A.  On  the  quarter-deck,  on  the  platform 
the  wheel  was  on.  After  the  execution  I 
was  moved  forward  of  the  larboard  arm- 
chest. 

Q.  Did  you  see  the  commander  announce 
his  doom  to  Mr.  Spencer  ? 

A.  No,  sir,  I  did  not ;  I  heard  him. 

Q.  Could  you  hear  what  passed  between 
the  commander  and  Mr.  Spencer  ? 

A.  Some  few  words,  I  could. 

Q.  At  what  part  of  the  conversation  ? 

A.  I  heard  the  commander  say  when  he 
announced  his  doom,  that  the  officers  had 
found  him  guilty  of  piracy,  or  words  to  that 
effect. 

Q.  Could  you  hear  Mr.  Spencer's  replies? 

A.  No,  sir,  I  did  not ;  he  spoke  rather 
low  at  the  time. 


Q.  Did  you  at  any  time  that  day,  after 
this,  see  Mr.  Spencer  ? 

A.  Not  until  he  was  hanging  at  the 
yard-arm. 

Q.   Was  Mr.  Thompson  near  you  ? 

A.  No,  sir,  not  that  I  know  of. 

Q.  After  the  execution,  what  passed  be- 
tween the  commander  and  yourself? 

A.  He  said  he  could  find  nothing  against 
any  of  the  four  that  were  then  in  irons,  if 
he  had  found  any  proof  our  fate  would  have 
been  the  same  ;  and  if  he  could  find  any  ex- 
cuse for  riot  taking  them  home  in  irons  he 
would  do  so ;  I  understood  him  to  mean  he 
would  release  them  from  their  irons. 

Q.  Did  you  tell  anybody  while  Mr. 
Spencer  was  in  irons,  that  you  were  sorry 
that  Mr.  Spencer  had  not  taken  the  brig,  or 
anything  of  that  kind  ? 

A.  No,  sir ;  not  to  the  best  of  my  recol- 
lection, I  don't  think  I  mentioned  it. 

Q.  What  was  your  post  in  relation  to  the 
captain's  gig  ? 

A.  I  was  not  in  the  captain's  gig. 

Q.  Did  you  hear  the  commander's  ad- 
dresses to  the  crew  after  the  execution? 

A.  I  heard  him  on  the  Sunday  after  the 
execution ;  he  read  Mr.  Spencer's  letters ; 
he  said  he  was  satisfied  that  the  young  man 
had  been  lying  to  him  for  half  an  hour  be- 
fore his  death ;  nothing  more  than  some 
name  of  Andrews,  some  talk  about  that. 

Q.  When  was  you  first  placed  in  a  bag, 
and  how  was  it  put  on  ? 

A.  On  Sunday  night  before  our  arrival  at 
St.  Thomas ;  it  was  tied  over  my  head ; 
Sergeant  Garty  superintended  the  work ; 
Anderson,  I  think,  was  the  one  who  put  me 
in ;  no  one  else  by  that  I  recollect. 

Q.  Was  it  tied  over  your  head  so  that 
you  could  not  get  your  head  out  ? 

A.  Yes,  sir. 

Q.  Did  you  hear  of  any  talk  of  rescuing 
the  prisoners  before  your  arrest  ? 

A.  No,  sir ;  I  did  not. 

Q.  Did  you  see  Small  just  before  the 
mast  went  ? 

A.  No,  sir,  I  did  not. 

Q.  Do  you  know  anything  of  Mr.  0. 
H.  Perry  being  sent  for  when  the  mast 
went? 

A.  Yes,  sir,  I  do ;  the  commander  sent 
me  for  him. 

Q.  What  were  you  about  ? 

A.  I  was  at  the  lee-wheel ;  M'Duncombe 
was  at  the  wheel  with  me. 


216 


PROCEEDINGS  OF  THE 


Q.  Did  you  hear  what  passed  between 
the  commander  and  Mr.  O.  H.  Perry  ? 

A.  1  heard  some  part  of  it.  The  com- 
mander said,  "  Mr.  Perry,  this  is  all  your 
fault ;"  Mr.  Perry  said  he  had  obeyed  or- 
ders— that  is  all. 

Q.  Did  you  hold  any  communication 
with  any  of  the  three  prisoners  before  your 
arrest  ? 

A.  No,  sir. 

Q.  Have  you  been  spoken  to  by  the  judge 
advocate  as  to  your  testimony  ? 

A.  Yes,  sir — I  can  not  exactly  state  the 
time — only  once. 

BY    CAPTAIN    OGDEN. 

Q.  Have  you  ever  been  spoken  to  by  any 
other  person  than  the  judge  advocate,  on  the 
subject  of  your  testimony  before  this  court  ? 

A.  No,  sir,  not  that  I  recollect  of,  any 
more  than  the  judge  advocate. 

BY  THE  JUDGE  ADVOCATE. 

Q.  When  you  came  into  my  room  in  the 
Astor  House,  were  you  not  charged  to  tell 
nothing  but  the  truth  ?  was  not  the  most 
you  said  taken  down  in  writing  ? 

A.  Yes,  sir ;  I  was  told  more  than  once 
to  tell  the  truth. 

CROSS-EXAMINED    BY  COMD'R   MACKENZIE. 

Q.  After  the  arrest  of  Mr.  Spencer,  did 
you  say  in  the  presence  of  John  S.  Wet- 
more,  or  any  one  else,  "  I  am  sorry  Mr. 
Spencer  did  not  succeed  in  taking  the  ves- 
sel," or  anything  of  that  kind  ? 

A.  No,  sir. 

Q.  Did  you,  after  the  arrest  of  Mr.  Spen- 
cer, say  in  the  presence  of  John  S.  Wet- 
more,  M'Gee,  or  any  one,  that  you  thought 
you  would  like  the  life  of  a  pirate  better 
than  living  on  shore,  or  words  to  that  effect  ? 

A.  No,  sir. 

BY   CAPTAIN    OGDEN. 

Q.  How  near  were  you  to  Commander 
Mackenzie  when  you  say  he  told  the  crew 
Mr.  Spencer  had  been  lying  to  him  for 
half  an  hour  before  his  execution  ? 

A.  I  should  judge  not  more  than  six  or 
eight  feet.  I  sat  on  the  platform  at  the 
"wheel,  and  the  commander  was  at  the  cabin 
companion-way. 

The  testimony  of  Alexander  M'Kee  was 
here  closed  ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 


Benjamin  F.  Green  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age  ?  Were  you 
on  board  the  Somers  in  her  last  cruise,  and 
in  what  capacity  ? 

A.  My  name  Benjamin  F.  Green  ;  my 
age  20.  I  was  on  board  of  the  Somers  in 
her  last  cruise,  as  ordinary  seamen. 

Q.  When  did  yon  first  hear  of  the  mu- 
tiny ? 

A.  On  the  evening  of  Mr.  Spencer's  ar- 
rest I  first  heard  of  the  mutiny  on  the  fore- 
castle— I  heard  it  from  M'Kee  ;  he  said 
Mr.  Spencer  had  been  quarrelling  with  one 
of  the  other  midshipmen  ;  some  one  stood 
by,  I  don't  recollect  who,  and  said  it  *vas 
for  something  else.  I  asked  what  it  was  ; 
they  said  for  undertaking  to  take  the  brig. 
Mr.  Gansevoort  then  came  and  asked  me 
if  I  knew  anything  concerning  Mr.  Spen- 
cer. I  told  him  I  did  not.  He  said,  "  You 
have  been  very  thick  with  Mr.  Spencer 
lately,  and  I  know  d — d  well  you  do  know 
something."  I  told  him  I  knew  nothing 
concerning  him.  That  is  all  he  said  at  that 
time. 

Q.  Did  you  ever  have  any  conversation 
with  Mr.  Spencer,  or  any  one  else,  about 
taking  the  brig  ? 

A.  No,  sir. 

Q.  Did  you  miss  muster  after  the  arrest  ? 

A.  Yes,  sir. 

Q.  Why? 

A.  I  did  not  hear  the  watch  called  at 
first,  but  when  it  was  relieved,  it  waked 
me  up. 

Q.  Were  you  punished  for  it  ? 

A.  Yes,  sir  ;  I  was  put  on  the  lookout  by 
the  commander's  orders  ;  Mr.  Rogers  sent 
me  there. 

Q.  Did  any  one  else  miss  muster  at  that 
time  ? 

A.  Yes,  sir,  the  boy  Allison ;  he  was 
punished  in  the  .same  way  that  I  was. 

Q.  Did  you  offer  any  excuse  for  missing 
muster  ? 

A.  Yes,  sir,  I  think  I  did  ;  after  Mr. 
Rogers  got  through  mustering  the  watch, 
he  told  Allison  to  go  on  the  lookout ;  I  re- 
ported myself  then  to  Mr.  Rogers  ;  he  turn- 
ed about  on  his  heel,  and  was  going  away, 
I  thought,  but  the  commander  said  I  was 
not  excused,  and  sent  me  on  the  lookout.  I 


NAVAL  COURT  MARTIAL 


217 


made  this  excuse  :  I  told  him  I  was  on 
deck  at  the  time,  that  the  gangway  was  so 
crowded  I  could  not  get  aft. 

Q.  When  were  you  arrested,  and  what 


A.  On  the  morning  of  the  30th;  I  was 
called  aft  to  the  mainmast ;  the  commander 
said  I  had  behaved  myself  very  well  since 
he  flogged  me,  but  he  said  during  the  last 
two  or  three  days  he  thought  he  perceived 
a  change  ;  he  said  something,  I  did  not 
well  understand,  about  confining  me,  but  he 
said,  any  how,  "  I  will  put  you  in  irons  for 
the  present."  I  was  ordered  on  the  quarter- 
deck, he  made  me  sit  down  between  two 
guns,  called  the  master-al-arms,  and  put  me 
in  irons.  This  is  all  I  recollect  of  at  the 
time. 

Q.  Was  anything  said  about  taking  home 
the  apprentices  in  irons  ? 

A.  I  don't  recollect  at  that  time,  but  I 
heard  something  about  it ;  the  commander 
said  he  did  not  like  to  take  home  the  ap- 
prentices in  irons ;  he  told  me  when  I  was 
arrested,  that  I  had  disobeyed  orders  in  go- 
ing to  quarters  without  a  flannel  shirt ;  he 
told  me  on  the  previous  Sunday  to  get  my 
hair  cut,  and,  as  he  named  no  particular 
time,  I  thought  if  I  got  it  cut  by  the  next 
Sunday  it  was  well  enough. 

Q.  Was  any  one  by? 

A.  Yes,  sir ;  Sullivan  for  one  ;  it  was  at 
quarters. 

Q.  Where  were  you  placed  on  the  day 
of  execution  ? 

A.  On  the  starboard  side  of  the  quarter- 
deck, abaft  the  after-gun. 

The  testimony  of  Benjamin  F.  Green 
was  here  suspended ;  his  evidence  was 
read  to  him,  and  corrected  by  him. 

The  Court  then  adjourned  until  Monday, 
March  30,  at  10  o'clock,  A.  M. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March  20,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read, 
"       Bolton, 
"       Turner, 
"       Sloat, 
"       Storer, 


Page, 

"       Gwinn, 
"       Wyman, 
Com'dr  Ogden, 
"       Shubrick, 

Members ; 
28 


W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  court-day 
was  read  and  approved. 

Benjamin  F.  Green  recalled. 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  see  the  commander  come 
from  his  cabin  in  uniform  ? 

A.  Yes,  sir. 

Q.  What  passed  ? 

A.  He  first  went  to  Mr.  Spencer,  said 
something  I  did  not  understand — I  was  too 
far  to  hear  ;  then  came  over  to  the  starboard 
side,  and  told  Cromwell  he  had  but  ten 
minutes  to  live. 

Q.  What  was  Cromwell  about  ? 

^4.  Reading  a  book  at  the  time. 

Q.  What  did  he  do  and  say  ? 

A.  When  the  commander  told  him,  he 
fell  on  his  knees,  praying — said  he  was  in- 
nocent ;  he  said,  "  Oh  God  of  the  Universe  ! 
look  down  upon  me  ;  never  such  a  thought 
came  into  my  head." 

Q.  Could  you  see  the  body  of  Mr.  Spen- 
cer when  the  commander  first  went  to  him  ? 

A.  Yes,  sir. 

Q.  What  was  his  position  during  the 
scene  between  him  and  the  commander 
then? 

A.  He  was  sitting  at  the  arm-chest,  his 
face  aft;  the  commander  asked  him  if  he 
wanted  to  write  any  words  to  his  friends ; 
I  don't  recollect  whether  it  was  the  first  or 
second  time  he  talked  to  him. 

Q.  Were  you  nearly  opposite  to  Mr. 
Spencer  ? 

A.  He  was  a  little  farther  aft  than  I  was  ; 
he  was  on  the  larboard  side ;  I  was  on  the 
starboard. 

Q.  Was  any  obstacle  to  sight  between 
you  and  Mr.  Spencer  ? 

A.  The  trunk  was  between  me  and  him, 
but  I  could  see  him  over  the  trunk. 

Q.  Did  you  or  not  see  Mr.  Spencer  out 
of  the  camp-stool  till  he  started  for  the  gang- 
way ? 

A.  No,  sir. 

Q.  Was  he  not  on  his  knees  before  that  I 

A .  I  did  not  see  him  on  his  knees. 

Q.  Did  you  or  not  at  any  time  miss  the* 
sight  of  his  person  till  he  went  forward  ? 

A.  Yes,  sir;  Cromwell  took  up  my  at- 
tention, I  took  most  notice  of  him. 


218 


PROCEEDINGS  OF  THE 


Q.  Whenever  you  would  look  at  Mr. 
Spencer,  what  was  his  position? 

A.  He  was  sitting  on  something  near  the 
arm-chest. 

Q.  Did  Cromwell  speak  to  any  one  be- 
fore he  went  forward  ? 

A.  Yes,  sir ;  he  spoke  to  Mr.  0.  H. 
Perry,  and  asked  him  to  try  and  intercede 
for  him ;  Mr.  Perry  made  no  reply.  I  don't 
recollect  of  seeing  him  speak  to  any  one 
else. 

Q.  Did  any  one  speak  to  Cromwell  ? 

A.  None  but  the  commander. 

Q.  Did  you  see  any  writing  going  on  on 
the  quarter-deck  ? 

A.  Yes,  sir  ;  I  saw  the  commander  wri- 
ting a  letter  for  Mr.  Spencer  on  the  larboard 
arm-chest. 

Q.  Did  you  notice  what  was  done  by  the 
commander  when  this  writing  was  done  ? 

A.  I  saw  him  speak  to  Mr.  Gansevoort. 

Q.  How  soon  after  did  the  prisoners  go 
forward  ? 

A.  I  should  not  think  it  was  more  than 
u  very  few  minutes. 

Q.  Did  the  commander  speak  to  you  after 
the  execution  ?  if  so,  what  did  he  say  ? 

A.  Yes,  sir  ;  he  said  he  could  not  find 
anything  against  us  ;  if  he  could,  our  fate 
would  have  been  the  same  as  the  other 
three  ;  asked  me  if  I  was  satisfied  with  it. 

Q.  Have  you  been  punished  aboard  the 
Somers,  and  how  often  ? 

.A.  I  was  punished  once  on  the  first 
cruise. 

Q.  Were  you  punished  the  last  cruise 
before  the  arrest  ? 

A.  I  was  not  flogged  ;  I  was  punished 
by  keeping  the  lookout  for  four  hours  during 
my  watch  after  the  arrest. 

Q.  Did  you  hear  the  commander's  ad- 
dress on  Sunday  after  the  execution  ? 

A.  Yes,  sir  ;  I  heard  him  read  over  Mr. 
Spencer's  letter  and  pass  a  good  many  re- 
marks on  it ;  he  said  that  Cromwell  had 
been  very  cruel  to  the  boys  ;  that  he  had 
called  him  aft  and  spoke  to  him  for  it  sev- 
eral times  ;  I  don't  recollect  all  that  he 
said. 

Q.  Did  he  say  anything  of  Mr.  Spencer  ? 

A.  Yes,  sir;  he  said  he  left  his  friends, 
lost  all  his  clothes,  and  shipped  in  a  whaling 
vessel. 

Q.  Not  wishing  to  ask  the  remarks  in 
letters  (I  refer  to  what  passed  between  Mr. 
Spencer  and  the  commander  on  the  day  of 


execution),  was  anything  said  by  the  cap- 
tain as  to  that  ? 

A.  I  don't  recollect  of  anything. 

Q.  Was  anything  said  about  Mr.  Spen- 
cer's truth  or  falsehood  ? 

A.  I  heard  the  commander  say,  "  This 
young  man  died  with  a  lie  in  his  mouth  ;" 
I  don't  know  that  he  meant  Mr.  Spencer 
more  than  any  one  else. 

Q.  At  any  time,  was  anything  said  by 
the  captain  about  taking  the  executed  pris- 
oners to  the  United  States  ? 

A.  I  did  not  hear  anything. 

Q.  What  passed  between  the  captain 
and  Small  on  the  day  of  execution  ? 

A.  I  could  not  hear  what  Small  said ; 
but  when  the  captain  went  away,  Small 
looked  at  me  and  smiled  ;  I  thought  by  that 
he  thought  he  was  not  to  be  hung. 

Q.  Before  your  arrest,  did  you  hear  any 
talk  of  rescuing  the  prisoners  ? 

A.  No,  sir. 

Q.  Did  you  hear  the  captain's  address 
on  the  day  of  execution  ? 

A.  No,  sir. 

Q.  Were  you  engaged  printing  India  ink 
into  any  one's  arm  the  day  of  Mr.  Spen- 
cer's arrest  ? 

A.  Mr.  Spencer's  and  Mr.  Delonde's, 
both  in  the  foretop. 

Q.  How  long  were  you  with  Mr.  Delonde 
that  day  ? 

A.  About  half  an  hour. 

Q.  How  long  have  you  been  in  the  ser- 
vice 1 

A.  Five  years  next  August. 

Q.  In  what  ships  ? 

A.  In  the  Ohio  and  Somers,  the  only 
sea-going  ships. 

Q.  Where  are  you  from  ? 

A.  Portland  in  the  state  of  Maine. 

Q.  Have  you  been  spoken  to  by  the  judge 
advocate  as  to  your  testimony  ? 

A.  Yes,  sir,  once. 

Q.  Were  you  allowed  to  be  present  when 
another  was  questioned  by  me  at  that  time  ? 

A.  No,  sir. 

Q.  Were  you  charged  repeatedly  by  me 
not  to  venture  an  untruth  ? 

A.  I  was. 

Q.  When  were  you  put  in  the  bag  first  ? 

A.  It  was  either  the  first  or  second  night 
after  the  execution ;  I  can't  say  for  certain 
which. 

Q.  How  was  it  put  on  you,  and  by 
whom? 


NAVAL  COURT  MARTIAL. 


219 


A.  I  think  Sergeant  Garty  and  Anderson 
the  captain  of  the  forecastle  ;  they  had  a 
blanket  spread  in  the  bag;  they  helped  me 
to  get  in  it,  and  it  was  tied  over  my  head. 

Q.  Was  it  so  tied  that  you  could  not  put 
out  your  head  ? 

A.  Yes,  sir. 

EY    CAPTAIN    SLOAT. 

Q,  Was  you  told  for  what  purpose  the 
bag  was  put  on  you  ? 

A.  No,  sir  ;  I  don't  recollect  that  any- 
body told  me — I  am  only  sure  that  the  bag 
was  tied  one  night  over  my  head,  and  loosed 
next  morning  at  4  o'clock  by  Mr.  Wales. 

CROSS-EXAMINED    BY  COMD'fl  MACKENZIE. 

Q.  If  you  missed  your  muster  on  the 
night  of  the  29th  of  November,  as  you  say, 
because  you  did  not  hear  the  watch  called, 
•why  did  you  give  to  the  officer  of  the  deck 
the  excuse  that  you  had  missed  your  mus- 
ter because  you  could  not  get  aft  ? 

A.  Because  there  were  both  watches  on 
deck — the  weather-gangway  was  full — there 
was  no  one  allowed  on  the  leeside  ;  when 
the  watch  was  relieved  it  waked  me  up  ;  I 
am  sure  I  was  on  deck  when  my  name  was 
called,  but  I  could  not  get  up  ;  that  was  the 
excuse  I  gave. 

Q.  If  you  were  on  deck  when  your  name 
was  called,  why  did  you  not  answer  ? 

A.  I  was  second  captain  of  the  forecas- 
tle ;  the  first  captain  was  sick ;  I  went  to 
the  boy  and  asked  him  if  he  had  been  re- 
lieved ;  I  heard  Mr.  Rogers  calling  the 
boy's  names,  and  I  started  to  go  aft ;  when  I 
got  to  the  mainmast,  he  had  not  got  through 
with  the  forecastle-men ;  I  stood  by  till  he 
got  through  mustering  all  the  watch,  and 
then  reported  myself. 

Q.  Did  you  ever  prick  on  Daniel  M'Kin- 
ley's  arm  the  picture  or  likeness  of  a  female 
pirate,  from  the  "Pirate's  Own  Book"? 

A.  No,  sir ;  I  pricked  the  picture  of  a 
female  pirate,  but  it  had  an  American  flag 
to  her. 

BY  THE    JUDGE  ADVOCATE. 

Q.  When  did  you  prick  this  in  M'Kin- 
ley's  arm  ? 

A.  Before  we  got  to  the  coast  of  Africa. 

Q.  Did  you  ever  prick  anything  into 
Wales's  arm  ? 

A.  Yes,  sir — a  sort  of  free-mason's  coat 
of  arms. 


Q.  What  others  have  you  pricked  on? 

A.  Sergeant  Garty 's  (I  pricked  an  eagle 
on  to  his),  Godfrey,  and  Gedney,  and  Van 
Velzor,  and  Wetmore  ;  I  pricked  a  ship  on 
Warner. 

BY  CAPTAIN  OGDEN. 

Q.  You  have  stated  that  you  saw  the 
commander  writing  a  letter  for  Mr.  Spen- 
cer. How  do  you  know  that  it  was  a  letter 
the  commander  was  writing  ? 

A.  I  heard  Mr.  Spencer  talking  to  him, 
and  he  was  a-writing,  I  thought,  what  he 
said  ;  it  was  in  the  form  of  a  letter ;  it  was 
a  sheet  of  letter  paper,  not  folded  ;  it  had 
writing  on  it ;  I  heard  him  ask  Mr.  Spencer 
if  he  wanted  to  write  twice  ;  he  said  no  the 
first  time,  but  afterward  said  he  wanted  to 
write  to  his  mother ;  I  think  he  said  some- 
thing about  his  mother ;  I  ain't  certain  what ; 
I  don't  know  whether  he  requested  to  send 
a  letter  or  a  message. 

Q.  What  was  the  commander's  reply? 

A.  I  did  not  hear  his  reply ;  I  heard 
him  call  Dunn,  and  send  him  for  pen  and 
paper. 

BY  THE  JUDGE  ADVOCATE. 

Q.  What  were  the  words  of  the  com- 
mander when  he  asked  Mr.  Spencer  the 
second  time  if  he  wished  to  write  ? 

A.  He  asked  him  if  he  wanted  to  send 
any  word ;  Mr.  Spencer  said,  "  Yes,"  and 
then  the  commander  called  for  Dunn. 

Q.  Did  Mr.  Spencer  speak  of  his  mother 
immediately  after  being  asked  if  he  wished 
to  send  any  word  ? 

A.  Yes,  sir,  I  could  hear  him  mention 
the  word  "  mother,"  but  I  did  not  take  par- 
ticular notice. 

Q.  Was  the  talk  about  the  mother  before 
or  after  the  paper  was  sent  for  ? 

A.  Before  ;  he  sent  for  the  paper  imme- 
diately afterward. 

BY  CAPTAIN  OGDEN. 

Q.  Did  you  hear  Mr.  Spencer  say,  "  This 
will  kill  my  poor  mother"  ? 

A.  No,  sir. 

The  testimony  of  Benjamin  F.  Green  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Doctor  Leecock  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 


220 


PROCEEDINGS  OF  THE 


EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  rank  ?  Were 
you  aboard  of  the  Somers  the  last  cruise  ? 

A.  My  name  is  R.  W.  Leecock ;  my 
rank  passed-assistant-surgeon,  and  on  board 
of  the  Somers  her  last  cruise. 

Q.  Did  you  hear  the  conversation  be- 
tween the  commander  and  Small  the  day  of 
Mr.  Spencer's  arrest  ? 

A.  No,  sir,  I  did  not. 

Q.  Do  you  know  how  Mr.  Spencer  was 
employed  the  day  of  his  arrest  ? 

A.  No,  sir,  I  don't  recollect. 

Q.  Had  you  any  conversation  with  Mr. 
Spencer,  or  any  other  of  the  executed  per- 
sons, from  their  arrest  till  executed  ? 

A.  No,  sir,  not  that  I  recollect. 

Q.  During  that  time,  was  any  of  the  exe- 
cuted persons  under  your  medical  charge  ? 

A.  No,  sir,  not  during  the  time  of  their 
confinement. 

Q.  Where  were  you  at  the  time  of  the 
annunciation,  by  the  commander,  of  their 
doom,  to  the  executed  persons  ? 

A.  In  the  ward-room,  I  believe,  at  the 
time. 

Q.  Did  you  hear  the  commander's  ad- 
dress on  the  Sunday  after  the  execution  ? 

A.  Yes,  sir. 

Q.  Did  he  speak  anything  about  Mr. 
Spencer's  truth  or  falsehood  that  day  ? 

A.  I  don't  recollect. 

Q.  Did  you  hear  any  such  expression  as 
this :  "  That  young  man  died  with  lies  in 
his  mouth"  ? 

A.  No,  sir,  I  did  not  hear  that  expres- 
sion ;  I  heard  nothing  of  that  kind. 

Q.  Did  you  hear  any  statement  that  Mr. 
Spencer  had  been  telling  the  commander 
falsehoods  before  he  died  ? 

A.  I  think  I  did  hear  some  such  obser- 
vation as  that. 

Q.  Can't  you  give  that  observation  ? 

A.  No,  sir,  I  don't  recollect. 

Q.  On  the  day  of  execution,  and  after 
the  execution,  did  you  hear  the  commander's 
address  to  the  crew  ? 

A.  Yes,  sir. 

Q.  Was  anything  mentioned  about  Com- 
modore Perry,  in  that  address  ? 

A.  I  believe,  "that  if  Commodore  Perry 
had  relieved  Mr.  Spencer,  the  commander 
•would  not  have  had  to  execute  him ;"  I 
don't  know  that  these  were  the  words. 

Q.  Did  not  the  commander  say,  pointing 


to  the  dead  body  of  Mr.  Spencer,  '•  Commo- 
dore Perry  would  not  take  the  responsibility 
of  removing  that  young  man  from  the  ship, 
but  I  have  taken  the  responsibility  of  hang- 
ing him,"  or  words  to  that  effect  ? 

A.  I  did  not  hear  him  make  that  remark  ; 
the  remark  was,  as  I  stated  before,  "  that  he 
had  applied  to  Commodore  Perry  to  be  re- 
lieved from  the  ship — that  had  he  been  re- 
lieved, the  commander  would  not  have  had 
to  execute  him,"  or  words  to  that  effect. 

Q.  In  any  of  the  commander's  addresses, 
after  the  arrest,  did  you  hear  anything  said 
about  taking  the  executed  prisoners  to  the 
United  States  ? 

A .  No,  sir,  I  never  heard  anything  of  the 
kind  ;  it  might  have  been  said. 

Q.  Did  you  inspect  M'Kinley's  groin  ? 

A.  Yes,  sir ;  it  was  after  the  execution  ;. 
I  don't  recollect  when ;  there  was  a  swell- 
ing in  the  groin  ;  I  took  it  for  an  enlarge- 
ment of  the  glands. 

Q.  Did  he  account  for  it  ? 

A.  He  said  he  struck  it  against  the  yard, 
doing  something ;  I  dont  recollect  what  it 
was. 

Q.  Prior  to  the  council  of  officers,  were 
you  consulted  as  to  putting  them  who  were 
executed  out  of  the  way  ? 

A.  No,  sir,  I  don't  think  I  was  ;  not  that 
I  recollect. 

Q.  Before  the  letter  of  the  officers  was 
prepared,  did  you  hear  Lieutenant  Ganse- 
voort  come  into  the  wardroom  and  urge  ex- 
pedition, as  the  captain  was  anxious  to  re- 
ceive it  ? 

A.  Yes,  sir  ;  Lieutenant  Gansevoort  re- 
quested we  might  get  through  with  it  as 
quickly  as  possible  ;  he  did  not  say  why. 

Q.  Was  this  before  Mr.  Heiskill  had  left 
the  wardroom,  on  the  1st  of  December  ? 

A.  I  don't  recollect ;  I  think  it  was  after 
the  examination. 

Q.  Did  Mr.  Heiskill  leave  the  wardroom 
till  he  signed  the  letter  of  the  officers,  on  the 
first  of  December  ? 

A.  I  don't  recollect. 

Q.  Was  any  one  injured  by  the  discharge 
of  the  pistol,  after  Mr.  Spencer's  arrest  ? 

A.  No,  sir. 

CROSS-EXAMINED    BY   COM?DR    MACKENZIE. 

Q.  What  was  the  physical  condition  of 
the  officers  of  the  Somers  immediately  pre- 
vious to  the  execution,  and  what  symptoms 
of  weakness  or  exhaustion  did  they  manifest  ?. 


NAVAL  COURT  MARTIAL. 


221 


A.  The  officers  were  very  much  wearied 
and  worn  out,  from  the  small  quantity  of 
sleep,  carrying  heavy  arms,  and  very  much 
exhausted  ;  they  complained  very  much. 

Q.  Did  you  derive  this  opinion  from  your 
own  feelings,  or  from  the  observation  of  the 
officers,  and  their  complaints  of  indisposi- 
tion and  weariness  ? 

A.  From  my  own  feelings  and  the  com- 
plaints of  the  officers. 

Q.  How  long  do  you  think  they  could 
have  done  duty,  if  no  change  of  circum- 
stances had  taken  place  ? 

A.  I  don't  think  they  could  have  stood 
more  than  two  or  three  days. 

Q.  Do  you  think  the  Somers  could  have 
teen  carried  into  any  port,  if  the  execution 
had  not  taken  place  ? 

A.  I  think  it  would  have  been  dangerous 
to  have  attempted  it,  from  the  number  of 
prisoners  on  deck. 

The  testimony  of  Doctor  Leecock  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

John  Cavenagh  was  then  called,  and  be- 
ing duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

BY    THE    JUDGE    ADVOCATE. 

Q.  What  is  your  name,  age,  rank  ?  Were 
you  aboard  the  Somers  last  cruise  ? 

A.  My  name  John  Cavenagh,  my  age 
eighteen  ;  I  was  on  board  of  the  Somers  in 
her  last  cruise  as  first-class  apprentice. 

Q.  How  long  have  you  been  in  the  ser- 
vice ? 

A.  Nine  months  the  15th  of  this  month. 

Q.  Where  are  you  from  ? 

A.  Philadelphia. 

Q.  Did  you  ever  have  any  conversation 
with  Mr.  Spencer  about  the  command  of  a 
vessel  by  him  ? 

A.  I  heard  Mr.  Spencer  say  he  did  not 
intend  to  remain  in  the  service  after  he  got 
home,  that  he  intended  to  join  the  merchant 
service. 

Q.  Did  he  ask  you  any  questions  ?     v 

A.  He  asked  me  if  I  should  like  to  sail 
with  him,  I  told  him  I  should. 

Q,  Where  and  when  was  the  conversa- 
tion? 

A.  I  don't  recollect  exactly  when  ;  it  was 
on  the  forecastle  :  he  used  to  be  speaking 
to  the  men  and  boys  then  ;  he  was  sociable 
with  them,  and  would  speak  on  different 


topics  ;  it  was  in  one  of  these  conversa- 
tions I  heard  this. 

Q.  Do  you  recollect  any  one  who  was 
by? 

A.  No,  sir ;  there  were  several. 

Q.  Did  you  ever  hear  of  any  plan  to 
take  the  brig  before  the  arrest  of  Mr.  Spen- 
cer ? 

A.  No,  sir,  I  did  not ;  I  had  no  chance 
to  hear  it ;  I  was  sick  most  of  the  time. 

Q.  After  the  arrest,  did  you  hear  any  talk 
of  rescuing  the  prisoners  ? 

A.  No,  sir,  I  did  not. 

Q.  What  would  the  knots  of  people  talk 
about  ? 

A.  Nothing  that  I  ever  took  notice  of;  I 
never  saw  anybody  trying  to  stop  my  hear- 
ing ;  I  was  not  on  deck  much. 

Q.  Did  you  hear  the  captain's  address 
on  the  Sunday  after  the  execution  ? 

A.  No,  sir,  I  was  sick. 

Q.  Were  you  ever  spoken  to  on  any  mu- 
tinous subject  before  the  arrest  of  Mr.  Spen- 
cer? 

A.  No,  sir,  I  was  not. 

Q.  Have  you  been  flogged  last  cruise  ? 

A.  Yes,  sir. 

Q.  Were  you  sick  at  the  time  of  the 
arrest  ? 

A.  Yes,  sir,  my  hammock  was  not  down ; 
I  was  not  doing  duty. 

Q.  Did  you  see  anything  going  on  after 
the  arrest  to  endanger  the  vessel  or  the 
officers'  command  of  her? 

A.  No,  sir,  I  did  not. 

Q.  Are  you  still  attached  to  the  Somers? 

A.  Yes,  sir. 

Q.  Have  you  ever  heard  from  any  of  the 
crew  that  there  was  a  plan  to  rescue  the 
prisoners  who  were  executed  ? 

A.  No,  sir,  I  have  not. 

Q.  Were  you  alarmed,  after  the  arrest, 
for  the  safety  of  the  vessel  and  officers  ? 

A.  No,  sir,  I  was  not. 

Q.  Did  you  see  any  secret  talking  going 
on,  on  the  berth-deck,  after  the  arrest  ? 

A.  I  did  not  take  notice  of  any  secret 
talking;  I  noticed  Small  appeared  to  be 
alarmed  the  night  Mr.  Spencer  was  ar- 
rested ? 

Q.  Did  you  have  any  talk  with  Small 
then? 

A.  No,  sir;  he  complained  of  a  pain  in 
his  side  and  vomiting ;  he  went  to  the  doc- 
tor and  he  gave  him  something  next  morn- 
ing. 


222 


PROCEEDINGS  OF  THE 


Q.  When  Waltham  was  flogged  twice, 
and  M'Kee  once,  before  the  execution,  were 
the  crew  disorderly  or  well-behaved  when 
that  was  going  on  ? 

A.  I  did  not  see  anything  out  of  the  way 
when  Waltham  was  flogged  ;  I  don't  recol- 
lect when  M'Kee  was  flogged. 

Q.  When  the  officers  were  down  in  the 
wardroom  holding  the  council,  did  you  notice 
anything  unusual  in  the  conduct  of  the  crew? 

A.  No,  sir,  I  did  not ;  I  was  aft  on  the 
berth-deck,  and  as  they  wanted  a  boy  his 
name  was  passed. 

Q.  Was  Mr.  Spencer  in  the  habit  of 
talking  with  the  crew  ? 

A.  Yes,  sir. 

The  testimony  of  John  Cavenagh  here 
closed ;  his  evidence  was  read  to  him  and 
corrected  by  him. 

John  Rameshardt  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  and  rank  ? 
were  you  aboard  the  Somers  the  last  cruise  ? 

A.  My  name  John  Rameshardt,  my  age 
fifteen  ;  I  was  on  board  the  Somers  in  her 
last  cruise  as  second-class  boy. 

Q.  Did  you  hear  before  the  arrest  any 
plan  of  mutiny  ? 

A.  No,  sir. 

Q.  Did  you  hear  of  any  plan  or  proposal 
for  rescuing  the  prisoners  after  the  arrest  ? 

A.  No,  sir. 

Q.  Would  the  men  collect  in  groups  after 
the  arrest  ?  and  if  so,  for  what  ? 

A.  Not  that  I  know  of,  I  never  took  any 
notice. 

Q.  Did  you  hear  or  see  anything  of  ill 
behavior  in  the  crew  after  the  arrest? 

A.  No,  sir,  I  did  not. 

Q.  Have  you  ever  heard  any  of  the  crew 
say  there  was  any  talk  of  a  rescue  ? 

A.  No,  sir,  I  did  not. 

Q.  Are  you  still  attached  to  the  Somers  ? 

A.  Yes,  sir. 

The  testimony  of  John  Rameshardt  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

William  T.  Van  Brunt  was  then  called, 
and  being  duly  sworn  by  the  president  of 
the  court,  testified  as  follows  : — 

EXAMINED  BY  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  rank  ?  were 
you  aboard  of  the  Somers  her  last  cruise  ? 


A.  My  name  William  T.  Van  Brunt,  my 
age  sixteen  ;  I  was  on  board  of  the  Somers 
in  her  last  cruise  as  second-class  appren- 
tice. 

Q.  Did  you  hear  any  talk  of  mutiny  be- 
fore the  arrest  ? 

A.  No,  sir. 

Q.  After  the  arrest,  did  you  hear  any  talk 
of  rescuing  the  prisoners  ? 

A.  Not  much  ;  I  heard  some  say  there 
might  be  a  rescue  ;  I  did  not  hear  any  say 
they  were  going  to  do  it. 

Q.  Did  you  see  anything  to  show  that 
any  part  of  the  crew  meant  to  make  a  res- 
cue ? 

A.  They  did  not  mind  to  their  duty  as 
well  as  they  might ;  I  did  not  see  anything 
that  looked  as  if  they  meant  to  make  a 
rescue. 

Q.  Have  you  ever  heard  any  one  since 
say  that  there  was  a  plan  of  rescue  ? 

A.  No,  sir. 

The  testimony  of  William  T.  Van  Brunt 
was  here  closed ;  his  evidence  was  read  to 
him  and  corrected  by  him. 

The  Court  then  adjourned  until  to-mor- 
row (Tuesday),  March  21,  at  10  o'clock, 
A.M. 


U.  S.  NAVY  YARD,        > 
Brooklyn,  Match  21,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members ; 

W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  Alexander  Sli- 
dell  Mackenzie,  accused. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

John  Valentine  was  then  called,  and  be- 
ing duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  rank  ?  were 
you  on  board  the  Somers  the  last  cruise  ? 

.4.  My  name  John  Valentine,  my  age 
sixteen ;  I  was  on  board  of  the  Somers 


NAVAL  COURT  MARTIAL. 


223 


in  her  last  cruise  as  third-class  appren- 
tice. 

Q.  Did  you  ever  hear  any  talk  of  mutiny 
before  the  arrest  ? 

A.  No,  sir. 

Q.  After  the  arrest,  did  you  hear  any 
plan  or  proposal  for  rescue  ? 

A.  No,  sir. 

Q.  Are  you  now  attached  to  the  Somers  ? 

A.  Yes,  sir. 

Q.  Have  you  heard  any  one  since  say 
he  had  heard  or  knew  of  any  plan  or  talk 
of  rescue  ? 

A.  No,  sir,  nothing  but  what  I  heard 
from  the  officers. 

The  testimony  of  John  Valentine  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Alfred  M'Gee  was  then  called,  and  be- 
ing duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  JUDGE  ADVOCATE. 

Q.  What  is  your  name,  age,  and  rank  ? 
were  you  aboard  the  Somers,  last  cruise  ? 

A.  My  name  Alfred  M'Gee,  my  age 
eighteen  ;  I  was  on  board  of  the  Somers  in 
her  last  cruise  as  second-class  boy. 

Q.  Did  you  hear  anything  of  mutiny  be- 
fore the  arrest  ? 

A.  No,  sir,  I  did  not. 

Q.  Did  you  afterward  hear  of  any  plan 
or  talk  of  rescue  ? 

A.  No,  sir,  only  I  heard  the  officers  talk- 
ing about  it. 

Q.  Have  you  ever  heard  any  one  say  he 
knew  of,  or  had  heard  of,  any  plan  of  res- 
cue or  wish  to  make  one  ? 

A.  No,  sir. 

Q.  Are  you  still  attached  to  the  Somers  ? 

A.  Yes,  sir. 

CROSS-EXAMINED  BY  COMD^R  MACKENZIE. 

Q.  After  Mr.  Spencer  was  arrested,  have 
you  ever  heard  Alex.  M'Kee  express  regret 
that  he  had  not  succeeded  in  taking  the 
vessel  ? 

A.  No,  sir;  I  never  did. 

Q.  Have  you  ever  heard  M'Kee  say  that 
he  would  like  a  pirate's  life,  better  than  liv- 
ing on  shore  ? 

A.  No,  sir,  nor  anything  of  the  sort. 

The  judge  advocate  does  not  wish  to  pro- 
tract this  examination  further,  or  he  would 
call  every  unexamined  member  of  the  Som- 
ers, even,  to  prove  that  no  plan  of  mutiny  was 


known  to  any  but  Wales,  before  the  arrest ; 
and  that  no  proposal  of  rescue  was  talked 
of  afterward  ;  if  any  witness  can  be  named 
to  prove  the  contrary,  he  offers  to  call  him. 
The  judge  advocate  now  offered  in  evi- 
dence, the  following  extract  from  the  log- 
book of  the  Somers  : — 

"  Nov.  26th,  astronomical  time,  1842. — 
From  4  to  6,  moderate  breezes  and  clear  ; 
inspected  the  crew  at  quarters  ;  it  having 
been  discovered  that  Midshipman  P.  Spen- 
cer had  been  tampering  with  some  of  the 
crew  of  this  vessel,  for  the  purpose  of  cre- 
ating a  mutiny  on  board,  he  was  questioned 
by  the  commander,  in  the  presence  of  the 
officers,  in  regard  thereto,  and  confessing 
that  he  had  done  so  but  in  joke,  he  was  or- 
dered into  double  irons  by  Commander  Mac- 
kenzie. •  M.  C.  PERRY." 

• 

For  the  purpose  of  rebutting  the  testimo- 
ny of  the  prosecution,  application  was  made 
by  the  accused  to  introduce  a  few  witnesses, 
which  was  granted  by  the  court,  the  judge 
advocate  not  objecting  to  it. 

W.  H.  Celsor  was  then  called,  and  being 
duly  sworn  by  the  president  of  the  court, 
testified  as  follows  : — 

BY    COMMANDER    MACKENZIE. 

Q.  What  is  your  name,  age,  and  rank  ? 
were  you  on  board  the  Somers  on  her  last 
cruise  ? 

A.  My  name  W.  H.  Celsor ;  my  age  24  ; 
rated  an  ordinary  seaman  on  board  the  Som- 
ers in  her  last  cruise. 

Q.  Did  you  ever  hear  any  conversation 
between  M'Kinley  and  M'Kee,  subsequent 
to  the  arrest  of  Mr.  Spencer  ? 

A.  No,  sir;  only  as  I  was  passing,  I 
heard  one  of  them  say,  I  don't  know  which, 
that  it  was  a  shame  that  Mr.  Spencer, 
Cromwell,  and  Small,  were  arrested. 

CROSS-EXAMINED   BY  JUDGE  ADVOCATE. 

Q.  Did  you  know  your  name  was  on  Mr. 
Spencer's  list  ? 
•     A.  No,  sir. 

Q.  Had  you  heard  anything  of  mutiny 
before  the  arrest  ? 

A.  No,  sir. 

Q.  Did  you  hear  any  talk  or  proposal  af- 
terward for  rescue  ? 

A.  No,  sir. 

The  testimony  of  Wm.  H.  Celsor  was 


224 


PROCEEDINGS  OF  THE 


here  closed  ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

Frederick  Snyder  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  age,  rank  ?  were 
you  on  board  the  Somers  in  her  last  cruise  ? 

A.  My  name,  Frederick  Snyder ;  my 
age,  18  ;  I  was  on  board  of  the  Somers  last 
cruise,  as  2d  class  boy. 

Q.  Have  you  ever  overheard  any  private 
conversation  between  Mr.  Spencer  and 
Cromwell  ? 

A.  Yes,  sir;  I  have  heard  Mr.  Spencer 
and  Cromwell  talking  together,  one  evening 
sitting  on  the  forescuttle,  in  the  early  part 
of  the  cniise  ;  Mr.  Spencer  asked  him  how 
he  thought  the  brig  would  do  for  a  slaver  ; 
Cromwell  said  she  might  do,  if  the  booms 
were  cut  away,  the  trunk  taken  away  and 
planked  over,  and  a  long  torn  forward. 

Q.  Did  Mr.  Spencer  ask  Cromwell,  how 
she  would  do  for  a  slaver,  or  a  pirate  ? 

A.  Yes,  sir  ;  for  a  slaver  or  a  pirate  ;  he 
said  both. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  When  did  you  first  tell  of  this  ? 

A.  At  Commodore  Perry's  house. 

Q.  Have  you  deserted  from  the  Somers 
since  her  arrival  ? 

A.  Yes,  sir. 

Q.  Have  you  been  punished  for  it  ? 

A.  No,  sir,  not  yet ;  I  do  not  know 
whether  Mr.  Spencer  said  slaver  or  pirate  ; 
I  can't  recollect  which  one  ;  he  said  one  or 
the  other. 

Commander  Mackenzie  offered  to  prove, 
by  Acting-Master  M.  C.  Perry,  that  Com- 
mander Mackenzie  was  informed  by  the 
consul  of  the  United  States,  at  Port  Praya, 
and  by  the  governor  of  Liberia,  that  the  U. 
S.  S.  Vandalia  was  to  touch  at  St.  Thom- 
as, for  supplies  on  her  way  to  the  United 
States. 

The  judge  advocate  admits  in  open  court, 
that  M.  C.  Perry  would  prove  these  facts, 
and  further  admits  they  are  facts. 

The  testimony  of  Frederick  Snyder  was 
here  closed ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

Andrew  Anderson  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows : — 


BY  COMMANDER  MACKENZIE. 

Q.  What  is  your  name,  age,  rank?  were 
you  on  board  the  Somers  during  her  last 
cruise  ? 

A.  My  name,  Andrew  Anderson  ;  my 
age,  31  ;  I  was  on  board  the  Somers  last 
ruise,  as  gunner's  mate,  doing  the  duty  al- 
so of  captain  of  the  forecastle. 

Q.  Were  you  ordered  to  the  main-top- 
mast head,  after  the  top-gallant  mast  was 
carried  away  ?  if  so,  whom  did  you  find 
there  ? 

A.  Yes,  sir  ;  Cromwell,  Wilson,  Golder- 
man,  Godfrey,  and  Gedney,  were  there. 

Q.  Were  they  busy  and  active  in  clear- 
ing the  wreck  ? 

A.  No,  sir ;  they  were  doing  nothing 
when  I  came  up  there. 

Q.  Were  they  talking  earnestly? 

A.  Yes,  sir  ;  I  did  not  take  notice  of 
what  they  were  talking  about ;  I  passed 
them. 

Q.  Did  you  ever  put  the  prisoners  into 
the  tarpaulin  bags,  prepared  for  their  com- 
fort ?  if  so,  when  did  you  first  do  so  ? 

A-  Can't  tell  when ;  Rogers  and  me 
helped  to  do  it;  Rogers  put  them  in  the 
first  time. 

Q.  How  did  you  tie  the  bag  lanyards  ? 

A.  Round  the  neck ;  and  I  asked  them 
if  that  will  do,  and  they  said,  "  Yes,  Ander- 
son, that  will  do ;"  the  lanyards  were  not 
tied  at  all,  only  took  a  bight  round  with  a 
half-knot. 

Q.  Did  you  ever,  on  any  occasion,  tie 
them  over  the  heads  of  the  prisoners  ?  did 
you  ever  see  it  done  by  anybody  else,  or 
see  the  prisoners  thus  tied  up  in  them,  after 
it  had  been  done  by  others  ? 

A.  No,  sir. 

Q.  Were  those  bags  comfortable  in  cold 
rainy  weather  ?  would  you  have  liked  to  be 
allowed  to  stow  yourself  away  in  one,  in- 
stead of  being  compelled  to  walk  the  deck  ? 

A.  Yes,  sir,  I  think  they  were  comfort- 
able ;  I  would  sooner  walk  the  deck  than 
be  in  a  bag. 

CROSS-EXAMINED  BY  THE  JUDGE  ADVOCATE. 

Q.  Why  did  you  come  from  aloft  for  a 
tail  block,  when  the  mast  was  carried  away  ? 

A.  We  could  not  get  the  yard,  or  mast, 
down  without  a  block. 

Q.  How  soon  after  you  first  went  up,  did 
you  come  down  ? 


NAVAL  COURT  MARTIAL. 


225 


A.  As  soon  as  I  found  they  had  no  block 
to  reeve  the  yard-rope  through,  I  went 
down ;  I  asked  them  if  they  had  a  block 
and  they  made  me  no  answer ;  I  was  on 
the  cap. 

Q.  Could  anything  be  done  till  the  tail- 
block  was  got  ? 

A.  No,  sir;  neither  the  mast,  nor  royal, 
nor  top-gallant  yards,  could  be  got  down 
without  a  block  ;  they  were  hanging  there, 
and  nothing  could  be  done. 

BY    CAPTAIN    OGDEN. 

Q.  Did  Cromwell,  or  Small,  render  any 
assistance  aloft,  after  the  tail-block  was  got  ? 

A.  Yes,  sir,  Cromwell  did;  but  Small 
was  on  the  top-sail  yard,  and  never  came 
up  as  high  as  I  was. 

BY    THE    JUDGE    ADVOCATE. 

Q.  Did  Cromwell  go  to  work  well  after 
the  tail-block  was  got  ? 

.A.  I  did  not  take  notice. 

Q.  Did  you  see  him  and  Small  in  con- 
versation then  ? 

A.  No,  sir. 

Q.  Could  you  see  what  Small  was  about 
then? 

A.  No,  sir  ;  he  was  on  the  top-sail  yard  ; 
he  did  not  appear  to  be  doing  anything. 

BY    CAPTAIN    PAGE. 

Q.  Did  Small  appear  to  be  on  the  top- 
sail yard,  for  the  purpose  of  lighting  the 
mast  and  yard  down  ? 

A.  There  were  so  many  there,  there  was 
no  room  for  them  to  do  anything  ;  all  the 
topmen  were  there,  and  Van  Velzor ;  they 
could  do  no  good  on  the  top-sail  yard  ;  we 
had  to  get  the  royal  mast  over  the  top-gal- 
lant yard ;  it  was  hanging  down  forward  of 
the  top-gallant  sail. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  Small  work  after  the  royal  mast 
was  got  out  of  the  way  ? 

A.  I  did  not  see  him  up  there  ;  he  went 
down  on  deck,  but  Cromwell  was  up  there 
the  whole  time. 

Q.  Were  those  people  up  there  talking 
in  their  usual  tone  ? 

A.  In  a  low  tone  ;  the  same  as  they  and 
the  rest  of  the  crew  talked  about  the  decks  ; 
I  saw  no  alteration  in  their  talk  about  the 
deck  ;  I  was  in  the  larboard  watch. 

Q.  If  you  had  chosen  to  listen,  could  you 
have  heard  them  talk  ? 
29 


A.  Yes,  sir. 

Q.  Did  you  hear  any  proposal  for  a  res- 
cue, after  the  arrest,  or  talk  of  it  ? 

A.  No,  sir. 

Q.  How  long  have  you  been  in  the  ser- 
vice ? 

A.  Six  years. 

Q.  Do  you  think  the  vessel  could  have 
been  taken  into  any  port  ? 

A.  Into  St.  Thomas ;  I  think  she  might 
have  been  brought  in  there  ;  I  stated  so  be- 
fore the  council  of  officers  in  the  ward- 
room. 

Q.  Did  you  hear  any  talk  of  mutiny,  be- 
fore the  arrest  ? 

A.  No,  sir. 

Q.  Did  you  see  any  effort  on  the  part  of 
the  crew  to  communicate  with  the  prison- 
ers ? 

A.  No,  sir. 

Q.  Were  you  talked  to,  and  trusted  in, 
by  Lieut.  Gansevoort,  after  the  arrest  ? 

A.  Yes,  sir. 

Q.  Did  you  see  any  disposition  to  resist 
on  the  part  of  the  prisoners,  when  arrested, 
or  afterward  1 

A.  No,  sir. 

Q.  Did  you  hear  Captain  Mackenzie's 
address  to  the  crew,  the  Sunday  after  the 
execution  1 

A.  Yes,  sir. 

Q.  Did  you  hear  anything  said  then 
about  Mr.  Spencer's  truth,  or  falsehood  ? 

A.  No,  sir  ;  not  as  I  recollect. 

Q.  Did  you  hear  anything  like  this — 
"  The  young  man  died  with  lies  in  his 
mouth"  ? 

A.  I  might  have  heard  it,  but  I  don't  rec- 
ollect it. 

Q.  Did  you  hear  anything  like  this — 
"  The  young  man  was  telling  me  falsehoods 
for  half  an  hour  before  he  died"  ? 

A.  No,  sir ;  I  don't  recollect  anything 
about  it. 

Q.  Did  you  see  Rogers  put  on  the  bags 
the  first  night  1 

A.  No,  sir,  I  did  not  see  him ;  he  tells 
me  he  did  put  them  on  the  first  night. 

BY  COMMANDER  MACKENZIE. 

Q.  Could  not  Cromwell  and  the  others 
lave  seen,  as  well  as  you  could,  that  a  tail- 
block  was  wanted,  and  have  sent,  or  gone 
down  for  one,  before  you  came  there,  had 
hey  wished  to  forward  the  duty  of  the  ves- 
sel ? 


226 


PROCEEDINGS  OF  THE 


A.  Yes,  sir  ;  they  knew  as  well  as  I  die 
what  was  wanted  ;  it  was  my  watch  below 
and  I  did  not  know  the  mast  was  carriec 
away,  until  the  1st  lieutenant  came  to  th 
fore-scuttle,  and  asked  for  the  captain  of  th 
forecastle;  they  were  all  up  there  befor 
me ;  I  went  up  immediately ;  I  was  below 

Q.  Did  you  not  do  the  greater  part  01 
what  was  done  yourself? 

A.  Yes,  sir;  Godfrey  and  me  did  the 
best  part  of  the  work  done  there. 

BY  THE  JUDGE  ADVOCATE. 

Q.  Did  you  hear  the  noise,  when  th 
mast  went  ? 

A.  I  heard  a  noise,  but  did  not  know 
what  it  was. 

Q.  Did  you  come  up  from  the  berth-deck 
as  soon  as  you  heard  the  noise  ? 

A.  No,  sir;  the  1st  lieutenant  came  anc 
called  me  up. 

Q.  Did  Mr.  Gansevoort  call  you  hurried- 
ly— quickly  ? 

A.  Yes,  sir ;  he  sung  out  for  the  captain 
of  the  forecastle  to  come  up. 

It  is  admitted  by  the  accused,  that  in  the 
entry  made  on  the  27th  Nov.  in  the  log- 
book, relative  to  the  carrying  away  of  the 
top-gallant  mast,  it  is  not  stated  that  it  was 
carried  away  by  design. 

It  is  further  admitted  that  there  is  no 
entry  in  the  log-book  of  any  rush  aft  having 
been  made  by  the  crew  that  day. 

The  testimony  of  Andrew  Anderson  was 
here  closed  ;  his  evidence  was  read  to  him 
and  corrected  by  him. 

Charles  Rogers  was  then  called,  and 
being  duly  sworn  by  the  president  of  the 
court,  testified  as  follows  : — 

EXAMINED  BY  COMMANDER    MACKENZIE. 

Q.  What  is  your  name,  age,  and  rank  ? 
were  you  on  board  the  Somers  during  her 
last  cruise  ? 

A.  My  name  Charles  Rogers,  my  age 
thirty-four,  I  was  quartermaster  aboard  of 
the  Somers,  her  last  cruise  ? 

Q.  Were  you  present  the  first  time  the 
prisoners  were  put  in  bags  on  the  deck  of 
ihe  Somers ;  how  were  these  bags  fastened  ? 
over  their  heads,  or  how  ? 

A.  I  was  present,  the  bags  were  fasten- 
ed over  their  shoulders. 

Q.  Have  you,  yourself,  ever  fastened  one 
of  these  bags  over  head  and  all  of  any  one 


of  the  prisoners,  or  have  you  ever  seen  it 
done  ;  or  seen  it  after  it  was  done  by  others  ?• 
A.  No,  sir. 

CROSS-EXAMINED  BY  JUDGE    ADVOCATE. 

Q.  Did  you  hear  of  any  proposal  or  talk 
of  rescue  after  the  arrest  ? 

A.  No,  sir. 

Q.  Did  you  observe  any  symptoms  of  re- 
sistance by  the  prisoners  when  arrested,  or 
afterward  ? 

A.  No,  sir. 

Q.  Did  you  hear  any  talk  of  mutiny  be- 
fore the  arrest  ? 

A.  No,  sir. 

Q.  Was  Mr.  Spencer  free  in  his  talk 
with  you  ? 

.A.  Yes,  sir. 

Q.  Did  you  think  the  Somers  could  have 
been  taken  into  any  port  ? 

A.  No,  sir. 

Q.  Why] 

A.  Because  to  all  appearances  there  was 
a  mutiny,  and  if  one  half  the  crew  were 
concerned  in  it  they  could  take  the  vessel. 
Six  men  could  take  her  with  all  ease. 

Q.  You  say  you  heard  no  talk  of  rescue, 
did  you  hear  any  one  talk  of  taking  the  vessel  ? 

A.  No,  sir. 

Q.  Why  was  you  afraid  it  would  be  at- 
tempted ? 

A.  By  their  actions,  by  the  way  the  men 
behaved  in  their  work,  and  in  their  talk  al- 
together. 

Q.  What  sort  of  talk  ? 

A.  Several  were  talking  by  themselves 
so  nobody  could  hear,  and  if  anybody  came 
they  would  go  away. 

Q.  Did  you  not,  before  the  council  of 
officers,  say  that  the  danger  would  be  in  the 
old  on  the  coast  1 

A.  I  said  there  was  most  danger  in 
squally  or  bad  weather. 

Q.  Did  you  not  then  express  yourself, 
1  If  there  is  a  plot  to  take  the  vessel  it 
would  not  be  safe  to  go  on  our  coast  in  cold 
veather  with  the  prisoners ;  I  think  they 
>vould  rise"  ? 
A.  Yes,  sir. 

Q.  Did  you  not  give  it  as  a  reason  for 
utting  Cromwell  and  Small  to  death,  that 
our  lives  would  be  safer,  as  those  two  of 
he  prisoners  are  the  only  ones  capable  of 
aking  charge  of  the  vessel  ? 
A.  Yes,  sir. 
Q.  Did  you  at  all  state  then  that   the 


NAVAL  COURT  MARTIAL. 


227 


manner  of  the  crew  showed  there  was  a 
plot? 

A.  No,  sir. 

The  testimony  of  Charles  Rogers  was 
here  closed  ;  his  evidence  was  read  to  him, 
and  corrected  by  him. 

The  judge  advocate  then  read  the  follow- 
ing paper : — 

"  The  fourth  charge  is  for  '  unofficer-like 
conduct.'  This  charge  the  judge  advocate 
abandons.  When  this  case  commenced  his 
opinion  on  the  untenableness  of  this  charge 
was  remitted  to  the  navy  department  for 
submission  to  the  attorney  general ;  the  vo- 
cations of  that  officer  have  not  allowed  his 
attention  to  this  matter,  and  it  has  been  sig- 
nified to  me  from  the  competent  authority, 
that  the  disposition  of  the  charge  was  left 
to  my  judgment ;  that  is,  it  might  either  be 
waived,  or  the  court  instructed  that  it  had 
no  foundation  in  law. 

"  Courts  martial  are  courts  under  the  con- 
stitution, and  must  derive  all  authority  from 
it  or  legislation  by  congress,  in  pursuance 
of  it. 

"  The  naval  code  contains  no  provision 
against  '  unofficer-like  conduct,'  after  the 
manner  of  the  British  mutiny  act.  This  is 
a  c  casus  omissus,'  and  can  not  be  sup- 
plied by  the  fact  that  courts  martial  have 
for  forty  years  supposed  themselves  to  pos- 
sess the  power,  and  have  tried  and  punish- 
ed for  such  description  of  offence. 

Legislation  only  can  give  the  power, 
every  exercise  of  jurisdiction  on  such  sub- 
ject matter,  was  void,  ab  initio. 

"  In  art.  32,  there  is  a  clause  in  the 
naval  code  of  1800,  '  All  crimes  committed 
by  persons  belonging  to  the  navy,  which 
are  not  specified  in  the  foregoing  articles, 
shall  be  punished  according  to  the  laws  and 
customs  in  such  cases,  at  sed.'  But  this  is 
too  uncertain  for  the  requirements  of  crimi- 
nal law,  and  the  enjoined  duty  in  the  con- 
stitution ( to  define  offences,'  and  to  make 
4  rules  and  regulations,'  there  being  no 
treatise  or  code  of  such  laws,  nor  any 
known  and  certain  customs. 

"  In  sustainment  of  these  views,  the  fol- 
lowing adjudications  are  subjoined.  The 
first  is  in  the  language  of  the  eminent  Judge 
Chase.  *  The  constitution  of  the  Union  is 
the  source  of  all  jurisdiction  of  the  national 
^government,  so  that  the  department  of  the 
1  government  can  never  assume  any  power 


that  is  not  expressly  granted  by  that  instru- 
ment, nor  exercise  a  power  in  any  other 
manner  than  is  there  prescribed.' 

"  Besides  the  particular  cases  which  the 
eighth  section  of  the  first  article  designates, 
there  is  a  power  granted  to  congress  to 
create,  define,  and  punish  crimes  and  of- 
fences, whenever  they  shall  deem  it  neces- 
sary and  proper  by  law  to  do  so,  for  effect- 
ing the  objects  of  government ;  and  although 
bribery  is  not  among  the  crimes  and  offen- 
ces specifically  mentioned,  it  is  certainly 
included  in  this  general  provision. 

"  The  question,  however,  does  not  arise 
about  the  power,  but  about  the  exercise  of 
the  power.  Whether  the  courts  of  the 
United  States  can  punish  a  man  for  an  act 
before  it  is  declared  by  the  law  of  the 
United  States  to  be  criminal  ?  Now  it  ap- 
pears, to  my  mind,  as  essential  that  con- 
gress should  define  the  offences  to  be  tried, 
and  apportion  the  punishment  to  be  inflicted, 
as  that  they  should  erect  courts  to  try  the 
criminal,  or  pronounce  a  sentence  on  con- 
viction. 

"  It  is  attempted,  however,  to  supply  the 
silence  of  the  constitution  and  statutes  of 
the  Union,  by  resorting  to  the  common  law 
for  a  definition  and  punishment  of  the  of- 
fence which  has  been  committed.  But  in 
my  opinion,  the  United  States,  as  a  federal 
government,  have  no  common  law,  and  con- 
sequently no  indictment  can  be  maintained 
in  their  courts  for  offences  at  the  common 
law. 

"  United  States  vs.  Vigol,  2  Dallas's  Re- 
ports ;  these  views  have  been  fully  sustained 
by  more  recent  decisions  ;  4  Dallas,  426  ; 
U.  S.  vs.  Burr,  4  Cranch,  501  ;  3  Wheat. 
336,  8  Peter,  S.  R.,  658. 

"  As  to  the  uncertainty  of  the  32d  article 
rendering  it  void,  no  further  authority  is 
needed  than  the  obvious  principles  of  equity 
which  require  the  duties  of  criminal  obliga- 
tion to  be  accurately  defined,  or  the  subject 
referred  to  in  codes  or  treatises,  where  they 
are  properly  particularized. 

"  The  supreme  court  have  so  adjudicated 
in  United  States  vs.  Smith,  5th  Wheat,  153. 
See  also  United  States  vs.  Sharp,  1  Peter, 
C,  C.  R.,  122. 

"  The  fifth  charge  is  for  'cruelty  and  op- 
pression.' The  specification  is  for  the  gener- 
al maltreatment  of  the  crew ;  such  a  specifi- 
cation is  void,  as  too  vague  ;  no  one  having 
complained  to  the  department,  it  could  not 


228 


PROCEEDINGS  OF  THE 


be  made  more  particular ;  it  must  be  aban- 
doned. 

"  WILLIAM  H.  NORRIS, 

"  Judge  Advocate." 

The  Court  then  adjourned  until  to-mor- 
row, March  22,  at  11  o'clock,  A.  M. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March  22,  1843.  5 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members ; 

and  W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate,  and  Commander  A.  S.  Macken- 
zie, accused. 

The  journal  of  the  preceding  day  was 
t        read  and  approved. 

Mr.  Griffin,  the  counsel  of  the  accused, 
then  read  his  defence  as  follows  : — 

"  MAY  IT  PLEASE  THE  COURT  :  The  first 
three  charges  under  trial,  and  on  which  you 
are  to  pass  judgment,  have  for  their  common 
subject  the  execution  of  Midshipman  Philip 
Spencer,  Boatswain's-Mate  Samuel  Crom- 
well, and  Seaman  Elisha  Small,  on  board 
the  United  States  brig  Somers,  on  the  1st 
day  of  December,  1842.  It  will  be  found 
that  these  three  charges  are  but  variations 
of  one  and  the  same  identical  charge  ;  which 
is,  that  such  execution  was  directed  and 
carried  into  effect  without  justifiable  cause. 
To  the  fourth  charge,  alleging  that  taunting 
and  unofficer-like  language  was  used  to  Mr. 
Spencer  by  the  accused  at  the  time  of  the 
execution  ;  and  to  the  fifth  charge,  alleging 
that  the  conduct  of  the  accused  toward  his 
crew  was  cruel  and  oppressive,  nothing  is 
required  to  be  said.  The  defence  to  these 
charges  is  respectfully,  yet  confidently,  sub- 
mitted on  the  plain,  full,  and  conclusive  ev- 
idence before  the  court,  without  a  word  of 
comment. 

"  In  judging  of  the  necessity  of  the  exe- 
cution, it  is  of  vital  importance  to  ascertain, 
preliminarily,  whether  a  mutinous  conspira- 
cy in  fact  existed  on  board  of  the  Somers, 
and  whether  the  persons  executed  were 
parties  to  that  conspiracy. 


"  That  such  conspiracy  existed ;  that  it 
had  for  its  object  the  conversion  of  the  brig 
into  a  piratical  cruiser ;  that  such  object 
was  to  be  effected  by  the  murder  of  -the 
officers  and  faithful  of  the  crew  ;  and  that 
Mr.  Spencer  and  Small  were  not  only  par- 
ties but  ringleaders  in  the  conspiracy — ap- 
pears from  their  own  repeated  and  solemn 
declarations,  and  from  unequivocal  docu- 
mentary evidence.  Mr.  Wales  testifies  that, 
on  the  25th  of  November,  Mr.  Spencer  took 
him  aside  to  a  place  of  secresy.  and  com- 
municated to  him  the  whole  mutinous 
scheme.  He  told  him  that  he  was  leagued 
with  about  twenty  of  the  crew  to  get  pos- 
session of  the  brig,  murder  the  commander 
and  officers,  and  commence  piracy.  Mr. 
Spencer  detailed  to  Mr.  Wales  the  plan  of 
the  operations,  was  systematic,  and  evin- 
ced much  deliberation.  That  this  commu- 
nication was  a  frolic  of  boyish  fancy,  as  has 
been  sometimes  suggested,  is  clearly  dis- 
proved by  Mr.  Wales,  and  by  the  intrinsic 
circumstances  of  the  case.  The  appearance 
and  manner  of  Mr.  Spencer  were  earnest 
and  grave  ;  before  he  would  make  his  com- 
munication, he  bound  Mr.  Wales  by  an  oath 
of  secresy  ;  and  previous  to  parting,  told 
him  that  if  he  betrayed  the  secret,  he  should 
be  murdered.  Small  was  present  at  a  part 
of  this  interview,  understood  the  nature  of 
the  communication,  and  expressed  his  grat- 
ification that  Mr.  Wales  had  consented  to 
be  one  of  them.  Mr.  Spencer  told  Mr. 
Wales  that  the  plot  was  detailed  in  a  secret 
paper  in  his  possession.  This  paper  was 
found  next  day  in  Mr.  Spencer's  razor-case, 
and  is  in  his  hand-writing  in  Greek  charac- 
ters. It  is  in  two  pieces,  forming  however 
parts  of  one  whole  ;  and  has  been,  therefore, 
generally  and  correctly  called  the  Greek 
paper,  in  the  singular  number,  and  is  so 
called  in  this  defence.  One  of  its  pieces 
contains  the  names  of  the  conspirators  and 
of  others  expected  to  join  them,  marking 
them  as  certain,  doubtful,  or  to  be  retained 
on  board,  willing  or  unwilling,  together  with 
a  few  explanatory  remarks  ;  the  other  piece, 
torn  from  a  book  on  geometry,  and  having 
its  back  covered  with  geometrical  figures, 
assigns  to  some  of  the  chief  conspirators 
their  stations  when  the  outbreak  should  oc- 
cur. This  Greek  document  is  the  official 
record  of  the  mutinous  conspiracy  prepared 
by  the  chief  conspirator  ;  and,  like  other 
records,  contains  on  its  face,  as  against  the 


NAVAL  COURT  MARTIAL. 


229 


parties  and  privies  to  it,  the  stamp  of  in- 
contestable verity. 

"  No  valid  objection  results  from  the  cir- 
cumstance that  the  Greek  paper  contains 
only  three  conspirators  marked  certain,  ex- 
clusive of  Mr.  Wales,  the  other  names  on 
the  paper  being  entered  either  in  the  doubt- 
ful list,  or  in  the  list  of  persons  to  be  de- 
tained on  board  at  all  events.     This  paper  j 
had  doubtless  been  prepared  at  the   incep- 1 
tion  of  the  conspiracy,  when  in  truth  there 
were  only  three  confirmed  associates.     It 
appears  that  some  time  before  the  disclo- 
sure  to  Mr.   Wales,   Mr.  Spencer  had,  on  j 
several  occasions,  exhibited  the  Greek  pa-  j 
per  to  one  of  his  associates   in  guilt ;  and 
that  it  was  even  then  a  paper  soiled  with 
use.    The  paper  having  been  thus  prepared 
when  the  number  of  confirmed  conspirators  j 
was  in  fact  only  three,  it  was  not  afterward  i 
deemed  necessary,  as  proselytes  were  daily 
multiplied,  to  transpose   their  names   from  j 
either  of  the  other  lists  to  that  marked  cer- 
tain, or  even  to  add  their  names  to  the  pa- 
per at  all.     The  list  marked  certain,  for  in- 
stance, does  not  contain  the  name  of  Small ; 
nor  is  his  name  to  be  found  in  any  part  of 
the  paper,  except  where  a  prominent  post  | 
at  the  meditated  massacre  is  assigned  him.  j 
So  there  was  a  like  omission  to  add  to  the  I 
list  the  names  of  the  other  new  accessaries, 
though  the  band  of  determined  conspirators  j 
had    already  increased    from    the    original 
number  of  three  to  the  formidable  number 
of  twenty.     It  is  possible  that  the  name  of 
Mr.  Wales  might  have  been  inserted  in  the 
paper  after  Mr.  Spencer's  conversation  with 
him,  as,  from  his  being  an  officer,  his  ac- 
cession would  be  thought  of  peculiar  im- 
portance ;  but  more  probably  his  name  was 
placed  there  when  the  paper  was  first  writ- 
ten.    The  existence  of  a  misunderstanding 
of  some  duration  between  the  commander 
and  Mr.  Wales  was  notorious  ;  and  it  is  not 
strange  that    the   conspirators,  judging  of 
his  feelings   and  principles  by  their  own, 
should  have  placed  his  name,  even  without 
consulting  him,  in  the  front  rank  of  the  con- 
spiracy. 

"  I  pass  over,  at  least  for  the  present, 
many  other  parts  of  the  evidence,  tending 
to  show  the  existence  of  the  conspiracy, 
and  the  guilt  of  Mr.  Spencer  and  Small, 
and  proceed  at  once  to  the  final  scene  just 
before  the  execution.  There  Mr.  Spencer 
and  Small,  with  their  dying  lips,  voluntarily 


confessed  their  guilt  in  the  presence  of  the 
officers  and  crew,  and  acknowledged  that 
their  punishment  was  just ;  Mr.  Spencer 
adding  that  he  had  attempted  a  mutiny  on 
board  the  two  national  vessels  in  which  he 
had  last  sailed,  and  that  his  piratical  pro- 
pensity was  a  sort  of  mania.  Surely  no 
innocent  man  ever  confessed  himself  guilty 
of  a  felony  or  other  heinous  crime,  unless 
the  confession  was  extorted  from  him  by 
the  rack,  or  some  other  instrument  of  tor- 
ture. To  condemn  a  man  out  of  his  own 
mouth,  is  a  rule  of  evidence  which  the  Judge 
of  all  the  earth  has  condescended  to  tell  us 
he  will  himself  adopt  in  that  great  day  when 
judgment  will  not  be  based  on  any  fallible 
proof. 

"  The  guilt  of  Cromwell  is  not  less  man- 
ifest. The  badness  of  his  general  charac- 
ter and  conduct ;  the  sudden  change  of  his 
demeanor  toward  the  apprentices,  ceasing 
to  treat  them  with  harshness  as  he  had  been 
wont,  and  affecting  toward  them  popular 
manners,  as  he  found  their  adhesion  to  the 
conspiracy  needed  ;  his  repeated  and  pro- 
fane declarations  of  deep,  desperate  hostility 
against  the  commander  and  officers ;  his 
threat  to  the  carpenter's  mate  a  little  before 
the  discovery  of  the  plot,  when  thrown  off 
his  guard  by  sudden  passion,  that  his  time 
was  short ;  his  intimacy  with  Mr.  Spencer, 
receiving  gifts  from  him  in  money  and  other 
articles,  and  spending  with  him  hour  after 
hour  almost  daily  in  deep  and  secret  con- 
sultation, an  intimacy  made  more  suspicious 
by  the  difference  in  the  rank  of  the  parties  ; 
his  being  asked  by  Mr.  Spencer,  in  private 
conversation,  whether  he  could  disguise  the 
brig  so  that  she  would  not  be  known,  and 
his  saying  that  he  could  easily  do  it ;  his 
advising  Mr.  Spencer,  in  another  private 
conversation,  to  have  the  booms  of  the 
Somers  cut  away  and  her  launch  thrown 
overboard,  with  a  view  to  render  her  more 
fit  for  piratical  service,  in  singular  coinci- 
dence with  the  subsequent  declaration  of 
Mr.  Spencer  to  Mr.  Wales,  that  he  meant 
to  have  those  things  done  ;  his  being  over- 
heard to  say  to  Small  that  they  would  soon 
be  able  to  see  the  Isle  of  Pines  (a  noted 
rendezvous  for  pirates),  also  irf  strange  co- 
incidence with  another  statement  by  Mr. 
Spencer  to  Mr.  Wales,  that  he  intended  to 
carry  the  brig  thither  ;  his  withdrawing  his 
money,  just  before  the  disclosure  of  the  con- 
spiracy, from  the  petty  officer  in  whose 


230 


PROCEEDINGS   OF  THE 


hands  he  had  placed  it  for  safe  custody,  ] 
with  no  possible  motive  but  his  wish  to  keep 
it  out  of  harm's  way  when  the  work  of  de- 
struction should  ensue  ;  his  absence  of  mind 
for  days  before  the  arrest  of  Mr.  Spencer, 
seeming  to  be  brooding  over  desperate 
thought ;  his  secret  and  repeated  conver- 
sations with  Small  just  after  Mr.  Spencer's 
arrest  and  before  his  own,  betraying  by  his 
looks  and  manner  deep  emotion  and  re- 
vengeful feeling ;  his  wilful  disobedience  of 
a  standing  order  of  the  ship  on  the  morning 
preceding  his  own  arrest,  and  which  order 
being  repeated  to  him  by  the  first  lieuten- 
ant on  discovering  the  default,  he  again 
stubbornly  omitted  to  obey  ;  Small's  decla- 
ration the  day  before  his  execution,  that  if 
any  one  was  leagued  with  Mr.  Spencer,  it 
was  Cromwell ;  the  cotemporaneous,  united, 
and  solemn  opinion  of  all  the  officers  that 
he  was  guilty,  founded,  at  least  in  part,  on 
their  ocular  view  of  many  little  incidents 
and  appearances  which,  though  collectively 
carrying  home  to  their  own  minds  a  just 
and  sure  conviction,  can  not  be  adequately 
communicated  to  others  in  all  their  nice,  and 
sometimes  faint,  though  forceful  import ;  are 
all  circumstances  in  evidence  before  the 
court,  and  which  leave  no  reasonable  doubt 
of  Cromwell's  guilt. 

"  But  if  further  proof  is  needed,  it  is  found 
in  the  controlling  fact  that  Cromwell  was 
the  very  person  to  whom  Mr.  Spencer  had 
been  seen  privately  exhibiting  and  explain- 
ing the  Greek  paper,  some  days  before  the 
revelation  of  the  plot  to  Mr.  Wales.  From 
the  close  intimacy  that  subsisted  between 
Mr.  Spencer  and  Cromwell,  it  might  indeed 
be  inferred,  even  without  external  proof,  that 
the  latter  could  not  have  been  a  stranger  to 
that  paper.  Its  secret  was  designed  to  be 
divulged  within  certain  limits  ;  for  a  single 
arm  could  not  have  achieved  the  conquest 
of  a  national  ship.  A  confederacy  was  ne- 
cessary ;  and  a  band  of  conspirators  could 
not  have  been  formed  without  disclosing  to 
them  the  object  of  the  conspiracy.  If  to 
Mr.  Wales,  with  whom  he  was  not  on 
terms  of  special  intimacy,  Mr.  Spencer  di- 
Tulged  the  existence  and  contents  of  the 
Greek  paper,  it  would  have  been  strange 
had  he  withheld  it  from  Cromwell,  the  com- 
panion of  his  secret  hours,  the  sharer  of  his 
bosom  thoughts.  But  there  is  no  need  to 
resort  to  inference.  Three  witnesses  have 
sworn  before  the  court  to  the  exhibition  of 


the  paper  by  Mr.  Spencer  to  Cromwell,  on 
three  different  occasions ;  and  that  Crom- 
well, on^having  the  paper  explained  to  him, 
expressed  his  concurrence  and  satisfaction. 
These  three  witnesses  could  not  have  been 
mistaken  as  to  the  identity  of  the  paper, 
marked  as  it  was  by  the  peculiar  form  of 
the  Greek  characters.  They  say  that  the 
letters  were  not  common  English  letters ; 
and  one  of  them  states  that  they  looked  like 
crosses,  and  that  the  paper  had  on  its  back 
geometrical  figures.  The  testimony  of  these 
three  witnesses  amounts  to  demonstration 
that  Cromwell  was  not  only  a  conspirator, 
but  a  ringleader  in  the  conspiracy.  His 
knowledge  and  approval  of  the  Greek  pa- 
per, utterly  precludes  the  possibility  of  his 
innocence.  By  knowing  and  approving  the 
paper,  he  in  effect  subscribed  his  name  there- 
to ;  he  virtually  affixed  his  own  proper  sig- 
nature to  the  treasonable  and  murderous 
league.  We  need  not  pause  to  inquire 
whether  he  saw  or  had  read  to  him  both 
pieces  of  the  paper  ;  for  each  part,  and 
every  sentence  of  each  part,  betrayed  the 
existence  of  a  conspiracy,  having  for  its  ob- 
ject murder  and  piracy. 

"  That  the  name  of  Cromwell  does  not 
appear  on  the  Greek  paper,  subtracts  nothing 
from  the  proof  of  his  guilt.  He  was  too 
adroit  and  wary  to  have  his  own  name  regis- 
tered without  disguise  on  the  guilty  record. 
He  wanted  the  benefit  of  the  omission  of 
the  name  of  Cromwell,  in  case  the  paper 
should  be  discovered.  Doubtless  the  name 
of  Andrews,  nowhere  to  be  found  in  the 
ship's  papers,  but  standing  in  the  Greek 
document  next  to  that  of  Mr.  Spencer  him- 
self, was  intended  to  designate,  not  a  ficti- 
tious person,  but  his  own  real  and  efficient 
lieutenant  in  guilt.  If  Cromwell  had  been 
by  turns  a  pirate  and  a  slaver,  it  was  proba- 
bly not  the  first  time  that  he  had  found  it 
convenient  to  have  two  names  in  use.  The 
averment  of  Mr.  Spencer  that  the  name  of 
Andrews  on  the  Greek  paper  was  intended 
for  Small,  was  manifestly  a  mere  pretence. 
If  it  had  been  designed  for  Small,  the  inser- 
tion of  Small's  own  proper  name  afterward 
on  the  paper  would  have  been  a  needless 
dropping  the  disguise  so  warily  sought ;  and 
the  suggestion  that  Andrews  might  have 
been  his  true  name,  and  Small  only  an  as- 
sumed one,  is  repelled  by  the  unimpeached 
witness  who  has  sworn  that  he  knew  him 
from  his  infancy,  and  his  father  and  grand- 


NAVAL  COURT  MARTIAL. 


231 


father  before  him,  and  that  he  never  went 
by  the  name  of  Andrews,  but  always  by  that 
of  Small.  That  no  particular  post  in  the 
meditated  massacre  was  assigned  in  the 
Greek  paper  to  the  person  designated  as 
Andrews,  while  Mr.  Spencer,  Small,  M'Kee, 
M'Kinley,  and  Wilson,  had  special  stations 
assigned  them  by  name,  strengthens  the 
conviction  that  Cromwell,  and  no  less  a 
character,  was  the  real  person  thus  desig- 
nated. Cromwell  was  the  eldest,  the  strong- 
est, and  the  most  cunning  of  the  conspira- 
tors ;  and  their  policy  required  that  he  should 
not  be  circumscribed,  when  the  outbreak 
should  occur,  by  any  particular  limits  of 
place  or  of  service.  He  was  to  be  not  only 
officer  of  the  deck,  where  the  main  struggle 
was  expected,  but  was  to  act  throughout  as 
the  master  spirit  of  tumult  and  of  death ; 
and,  clothed  with  a  sort  of  evil  ubiquity, 
was  to  interpose  his  malign  counsel  and 
giant  strength  wherever  they  should  most 
be  needed.  His  persisting  in  the  declara- 
tion of  his  innocence  at  the  time  of  the  exe- 
cution, only  proves  that  he  was  a  more  hard- 
ened offender  than  either  Mr.  Spencer  or 
Small.  Much  their  senior  in  years,  he  had 
been  longer  educating  in  the  various  schools 
el  vice.  Besides,  his  own  name  not  being 
on  the  Greek  paper,  there  was,  he  knew, 
no  record  evidence  of  his  guilt.  It  is  a  well 
known  fact  in  the  history  of  crime,  proved 
by  all  the  books  on  criminal  law,  that  vete- 
rans in  iniquity  have  seldom  or  never  those 
'  compunctious  visitings  of  nature,'  which 
often  extort  confessions  of  their  guilt  from 
younger  and  less-disciplined  offenders.  The 
declaration  by  Mr.  Spencer  that  Cromwell 
was  innocent,  might  have  been  owing  to 
some  deep  pledge,  like  the  oath  of  a  bandit 
on  his  drawn  dirk,  which  Cromwell  had 
adroitly  exacted,  that,  in  case  of  discovery, 
his  adhesion  to  the  mutiny  should,  under  all 
circumstances,  be  kept  secret ;  or  it  might 
have  been  owing  to  a  hope  grasped  at  by 
Mr.  Spencer  that  Cromwell,  if  set  at  liberty 
by  his  means,  would  rouse  his  associates, 
and  rescue  him  even  at  the  last  moment. 
What  makes  it  most  probable  that  this  dec- 
laration was  caused  by  the  motive  last  men- 
tioned, is  the  remarkable  fact  that,  during 
the  half  hour  preceding  his  death,  wjien  all 
hope  of  escape  had  vanished,  Mr.  Spencer 
ceased  to  say  anything  of  Cromwell's  inno- 
cence. He  was  collected  and  tranquil,  seem- 
ingly earnest  to  make  his  peace  with  God, 


and  with  such  of  his  shipmates  as  he  had 
chiefly  wronged.  Of  Small,  whom  he  had 
seduced  from  duty,  he  pathetically  implored 
pardon,  saying  that  he  could  not  die  com- 
posed without  it ;  for  Mr.  Wales  he  anx- 
iously inquired,  and,  when  he  came,  begged 
to  be  forgiven  by  him  for  tampering  with  his 
fidelity.  But  to  Cromwell,  his  bosom  asso- 
ciate, who,  upon  the  supposition  of  his  inno- 
cence, was  the  individual  of  all  others  most 
injured — who  had  been  involved  by  his 
treacherous  friend  in  unfounded  suspicions 
and  fallacious  proofs,  just  about  to  consign 
him  to  the  gallows — whose  blood  at  the 
dread  tribunal  above  would  call  loudest  for 
vengeance  against  his  destroyer  —  whose 
forgiveness  was  to  be  instantly  and  eagerly 
sought  by  tears  and  prayers,  as  the  only  ex- 
piation that  could  be  made — to  him  Mr. 
Spencer  opened  not  his  lips.  He  asked  not 
forgiveness  of  Cromwell,  though  they  calmly 
met  face  to  face,  and  paused  as  they  met, 
almost  touching  each  other  in  their  way  to 
the  execution,  because  he  well  knew  that 
Cromwell,  instead  of  being  his  victim,  had 
been  his  prompter  in  guilt.  To  his  willing 
associate  in  crime,  he  had  no  apology  to 
make  ;  from  him,  no  pardon  to  supplicate. 

"  It  is  then  fully  proved,  not  only  that  a 
mutinous  conspiracy  existed,  but  also  that 
Mr.  Spencer,  Cromwell,  and  Small,  were 
the  prime  conspirators.  It  follows  that  they 
had  forfeited  their  lives  to  the  laws  of  their 
injured  country.  For  it  is  enacted  by  the 
thirteenth  article  of  the  first  section  of  the 
act  of  Congress  of  1800,  that  '  If  any  per- 
son in  the  navy  shall  make  or  attempt  to 
make  any  mutinous  assembly,  he  shall,  on 
conviction  thereof  by  a  court  martial,  suffer 
death.'  But  by  the  act  of  1806,  the  statu- 
tory punishment  of  a  mutiny  on  land  is  to 
be  measured  out  by  the  discretion  of  a  court 
martial ;  the  court  may  exact  life,  or  it  may 
impose  a  lesser,  or  even  a  slight  punish- 
ment. The  wisdom  of  the  national  legis- 
lature has  thus  strikingly  discriminated  be- 
tween the  guilt  of  the  same  act  done  on  land 
or  at  sea.  The  discrimination  is  just ;  a  mu- 
tiny on  the  ocean  is  a  more  dangerous  of- 
fence than  one  on  land,  and  needs  the  check 
of  a  severer  penalty.  The  commander  of  a 
ship  at  sea  can  not,  like  a  commander  on 
shore,  invoke  the  aid  of  some  neighboring 
troops,  or  appeal  to  the  patriotism  of  the  sturdy- 
militia.  From  an  overpowering  land  mu- 
tiny the  faithful  may  retreat,  as  from  a  burn- 


232 


PROCEEDINGS  OF  THE 


ing  edifice  ;  but  from  a  mutiny  at  sea  there 
is  no  retreat,  beyond  the  narrow  limits  of 
the  ship.  A  mutiny  on  land  does  not  al- 
ways vitally  endanger  the  interests  or  the 
fame  of  the  country ;  but  the  very  object 
of  a  mutiny  at  sea,  in  the  naval  service,  is 
the  conversion  of  a  national  ship  to  some 
evil  use,  and  the  consequent  wounding  of 
the  national  honor.  Hence  the  law,  with 
an  unwavering  hand,  has  engraved  on  the 
list  of  capital  offences  all  naval  mutinies, 
whether  great  or  small,  whether  matured 
or  yet  in  their  early  development.  Nor 
need  the  evil  intent  be  bodied  forth  in  ac- 
tion to  complete  the  legal  crime.  The  mu- 
tinous imagining  of  a  single  heart,  if  re- 
vealed to  a  single  ear,  with  a  corrupting 
purpose,  brings  down  on  the  offender  the 
death-bearing  sentence  of  the  law.  Not 
only  a  mutiny,  but  the  '  attempt'  to  create 
one,  in  the  naval  service,  is,  by  the  words 
of  the  statute,  punishable  with  loss  of 
life. 

"iSut  it  does  not  follow,  nor  is  it  pretend- 
ed, that  because  Mr.  Spencer,  Cromwell, 
and  Small,  had  forfeited  their  lives,  the 
commander  of  the  Somers  might  therefore 
direct  them  to  be  executed.  It  is  admitted, 
that  under  ordinary  circumstances  it  would 
have  been  his  duty  to  detain  them  in  safe 
custody,  and  bring  them  home  to  be  tried. 
But  the  mutiny  was  of  an  unusual  and  un- 
precedented character.  It  created  a  case 
which  the  statute  law  did  not  contemplate 
and  could  not  reach.  It  was  believed,  and 
for  reasons  of  overwhelming  force,  that 
neither  Mr.  Spencer,  nor  Cromwell,  nor 
Small,  could  have  been  brought  into  port, 
without  the  most  imminent  jeopardy  to  the 
brig  and  the  lives  of  the  faithful  officers  and 
crew.  It  was  on  this  ground,  the  unyield- 
ing ground  of  imperative  necessity,  that  the 
commander  of  the  Somers  found  himself 
placed,  when  he  reluctantly  directed  the 
execution  of  Mr.  Spencer,  Cromwell,  and 
Small.  And  it  is  on  this  ground  that  he 
now  appeals  for  his  justification  to  this 
court,  to  his  country,  to  the  civilized  world, 
and  humbly  and  reverentially  to  his  GOD. 

"  The  size  and  construction  and  equipment 
of  the  Somers  must  be  taken  into  consider- 
ation, in  judging  of  the  necessity  of  the 
execution.  She  had  no  marines — a  body 
of  men  distinct  from  the  crew  in  organiza- 
tion and  feeling,  on  whom,  in  ordinary  ships 
of  war,  the  police  and  discipline  greatly  de- 


pend, and  who  form  a  counterpoise  and 
check  to  the  turbulent  spirits  of  common 
seamen.  She  is  of  the  smallest  class  of  ves- 
sels of  war.  She  had  no  place  where  pris- 
oners could  be  safely  secured  or  even  sepa- 
rated from  intercourse  with  the  crew.  Her 
hold  was  filled  to  its  utmost  capacity  by  bal- 
last, water  tanks,  ammunition,  stores,  and 
other  necessaries  of  a  vessel  of  war  in  ac- 
tual service.  There  was  not  a  foot  of  room 
for  confining  prisoners  in  the  hold  ;  and  had 
there  been  room  there,  no  means  existed 
for  effectually  separating  it  from  the  berth- 
deck,  where  all  the  crew  slept  and  ate,  ths 
berth-deck  being  divided  from  the  hold  only 
by  loose,  moveable  hatches,  which  could 
have  been  either  lifted  up  from  above  or 
knocked  up  from  below  by  the  smallest  boy 
on  board.  The  berth-deck,  the  steerage, 
the  wardroom,  and  the  cabin,  formed  the 
four  apartments  below  deck.  The  three 
last  were  very  small  rooms  ;  and  all  the 
apartments  below  were  separated  from  each 
|  other  by  only  thin  and  frail  partitions, 
through  which  a  strong  man  could  force  his 
way,  from  the  brig's  stem  to  her  stern,  by 
the  shove  of  the  shoulder  or  the  push  of 
the  foot.  Nor  is  there  sufficient  substance 
in  the  thin  and  frail  partitions  below  deck 
to  prevent  communication  in  the  ordinary 
tone  of  voice,  or  even  by  a  whisper.  The 
safest  place  of  confinement  on  board  the 
Somers  is,  therefore,  the  open  deck,  in  the 
after  part  of  which  the  mutineers  were  in 
fact  confined:  But  the  deck  is  flush  fore 
and  aft,  and  there  the  prisoners  necessarily 
remained  within  a  few  feet  of  each  other, 
and  in  full  sight  of  the  crew.  To  prevent 
the  prisoners  communicating  with  each 
other  and  with  the  rest  of  the  crew  by  words 
was  difficult ;  to  prevent  such  communica- 
tion by  signs  was  impossible.  The  officers 
perceived  that  the  art  of  secret  and  silent 
communication  was  not  only  understood, 
but  practised,  on  board  the  Somers  ;  and 
they  were  not  surprised  to  learn,  on  reach- 
ing home,  that  Mr.  Spencer  had  taken  les- 
sons and  become  an  expert  in  that  art,  which 
no  doubt  he  taught  to  his  associates  in  the 
conspiracy.  It  would  have  been  only  the 
work  of  a  minute  for  the  unconfined  mal- 
contents, had  they  made  a  rush  on  the  after 
part  of  the  deck,  to  have  struck  off  the  irons 
of  the  prisoners,  and  placed  them  at  their 
head.  And  had  the  rush  overcome  the  offi- 
cers on  deck,  the  officers  below  could. 


NAVAL  COURT  MARTIAL. 


233: 


scarcely  have  come  to  the  rescue,  as  they 
must  have  ascended  by  narrow  steps,  and 
through  the  small  companion-scuttles,  at 
which  two  or  three  resolute  men  might 
easily  have  cloven  them  down. 

"  When  the  mutinous  conspiracy  first 
reached  the  ears  of  the  commander  of  the 
Somers  through  Mr.  Wales,  it  had  attained 
a  formidable  growth.  Until  the  arrival  of 
the  brig  at  Madeira,  on  'the  outward  voyage, 
the  conduct  and  demeanor  of  the  crew  had 
been  correct.  From  her  sailing  thence  a 
difference  was  observed  ;  and  after  leaving 
the  coast  of  Africa,  on  the  homeward  voy- 
age, their  conduct  and  demeanor  became 
worse  and  worse.  These  facts  are  proved 
by  all  the  witnesses  for  the  defence.  The 
cause  of  this  remarkable  change  was  for  a 
time  veiled  in  mystery.  It  was  well  known 
that  there  had  been  no  variation  in  the  con- 
duct of  the  commander — that  his  govern- 
ment throughout  the  voyage,  though  firm, 
had  been  uniformly  paternal.  But  the  dis- 
covery of  the  plot  solved  the  mystery,  and 
demonstrated  that  the  mutinous  conspiracy 
had  been  the  sole  cause  of  this  change  of 
conduct  and  demeanor.  The  extent  of  the 
change  clearly  evinced  the  powerful  and 
wide-spread,  though  silent,  operation  of  the 
cause  which  produced  it.  The  conclusion 
was  inevitable,  that  the  poison  of  the  mu- 
tiny had  already  pervaded  a  large  portion 
of  the  ship's  company.  According  to  Mr. 
Spencer's  statement,  proved  by  the  change 
in  the  conduct  and  demeanor  of  the  crew 
not  to  have  been  exaggerated,  he  already 
numbered  twenty  determined  associates, 
comprising,  of  course,  the  eldest  and  the 
strongest.  For  Mr.  Spencer  had  declared 
to  Mr.  Wales  that  he  would  have  none  of 
the  '  small  fry,'  as  he  termed  the  lesser 
boys  ;  that  they  were  useless  on  board  ;  and 
that  he  would  get  rid  of  them,  when  he 
came  into  power,  by  making  them  '  walk 
the  plank.'  And  yet  the  lesser  boys  com- 
posed a  large  portion  of  the  crew.  The 
foundations  of  the  mutinous  conspiracy  had 
been  laid  deep,  and  broad,  and  firm ;  for 
an  officer  of  the  brig  had  been  the  chief 
architect.  He,  though  bound  in  duty  and 
in  honor  to  use  his  best  efforts  to  promote 
the  discipline  and  elevate  the  mental  and 
moral  character  of  the  crew,  had  been  for 
weeks  sedulously  employed  in  sinking  them 
to  the  lowest  depths  of  insubordination  and 
crime,  and  to  this  nefarious  object  had 
30 


been  devoting,  but  too  successfully,  all  the 
weight  derived  from  his  birth  and  official 
rank,  arid  all  the  influence  of  talents,  man- 
ners, and  acquirements,  well  fitted  for  the 
work  of  demoralization. 

"  It  is  well  known  that  a  mutiny,  unless 
suppressed  at  its  very  outset,  usually  in- 
creases as  it  goes  on,  in  a  fearfully  rapid 
ratio,  especially  when  thus  fomented  and 
impelled.  Nevertheless,  the  commander 
of  the  Somers  proceeded  with  great  caution. 
He  first  caused  Mr.  Spencer  to  be  put  in 
irons,  which  was  done  on  the  26th  Novem- 
ber. This,  so  far  from  intimidating,  only 
irritated  the  mutinous  spirit.  The  next  day 
Cromwell  and  Small  were  arrested.  Still 
the  mutinous  spirit  continued  to  gather 
strength.  Then  four  other  delinquents  were 
added  to  the  number  of  the  prisoners.  And 
now  the  cause  of  irritation  was  multiplied 
sevenfold  ;  the  discontented  of  the  crew  had 
seven  objects  of  supposed  oppression  before 
them  ;  seven  themes  upon  which  to  appeal 
to  their  yet  uncontaminated  shipmates  ;  sev- 
en common  wrongs  to  avenge.  Besides, 
the  unconfined  guilty  feared  that  their  own 
turn  might  come  next.  The  court  martial 
and  gallows  at  home  haunted  their  morbid 
imaginations.  Seven  of  their  accomplices 
were  in  irons,  either  of  whom  by  turning 
State's  witness  might  ensure  their  own  con- 
viction. To  arrive  in  port  was  to  come- 
within  the  jaws  of  danger,  probably  of  death. 
The  words  of  the  commander,  that  the  of- 
fenders would  be  taken  home  for  trial,  were 
perpetually  sounding  in  their  ears.  They 
became  convinced  that  the  boldest  course 
was  to  them  the  safest  one  ;  that  the  pirate's 
black  flag  was  now  the  surest  protection 
against  the  violated  laws  of  their  country. 

"  Never  was  a  crew  where  malcontents 
could  have  had  a  fairer  chance  of  making 
proselytes.  The  crew  of  the  Somers  were 
almost  all  apprentices  ;  many  of  them  men 
in  physical  strength,  but  all  of  them  boys  in 
mind.  Their  youthful  feelings  were  pe- 
culiarly open  to  sympathetic  appeals  ;  their 
undisciplined  imaginations  liable  to  be  easi- 
ly beguiled  by  seductive  pictures  of  the 
freedom  and  pleasure  of  the  rover's  course. 
The  season  of  youth,  especially  of  untutored 
youth,  is  proverbially  exposed  to  tempta- 
tions. How  impressive,  then,  must  have 
been  the  mutinous  appeals  to  the  crew  of 
the  Somers,  carried  home,  as  they  were,  by 
the  corrupting  example  of  the  chief  con- 


234 


PROCEEDINGS  OF  THE 


spirator !  Highly  born  and  educated,  he 
had  renounced  hopes  as  brilliant  and  dear 
as  ever  glittered  before  the  eye,  or  touched 
the  heart,  of  an  American  youth — the  lau- 
rels of  honest  fame,  and  the  sweet  delights 
of  domestic  love — his  country's  plaudits 
and  his  parents'  smiles — for  the  wild  and 
tragic  drama  of  a  pirate's  life.  How  re- 
sistless must  have  been  the  influence  of  this 
pernicious  example  on  the  lowly,  credulous, 
reckless  spirits  of  the  ship's  berth-deck,  to 
whom  the  path  of  virtue  might  have  seemed 
to  promise  nothing  but  unremitting  toil  and 
unrelenting  poverty,  and  to  each  of  whom 
their  tempters  might  have  said,  *  The  world 
is  not  thy  friend,  nor  the  world's  law.'  It 
was  impossible  for  the  officers  to  draw  a 
line  of  separation  between  the  sound  and 
the  unsound  parts  of  the  crew.  They  slept 
and  ate  in  the  same  apartment,  unattended 
by  any  officer.  They  watched  and  worked 
in  groups.  The  life  of  common  seamen  on 
shipboard  is  necessarily  gregarious.  They 
can  communicate  with  each  other  by  whis- 
pers, by  signs,  by  looks.  The  officers  could 
no  more  check  the  progress  of  mutiny  among 
the  crew  than  they  could  the  progress  of 
contagious  disease.  Nor  could  they  ascer- 
tain how  far  the  mutiny  had  extended. 
They  knew  that  the  moral  malady  had  been 
constantly  on  the  increase  since  the  day 
when  Mr.  Spencer  had  boasted  that  he  had 
already  twenty  associates  at  his  call ;  and 
it  required  the  omniscient  eye  to  select 
those,  if  any,  on  whom  the  officers  might 
now  rely.  To  have  held  an  inquest  with 
the  view  to  ascertain  the  names  of  the  un- 
confined  malefactors  would  have  been  worse 
than  useless.  Their  universal  asseveration 
of  innocency  could  not  have  gained  cred- 
ence against  the  daily  and  hourly  demon- 
strations of  their  guilt.  And  had  the  names 
of  the  en  confined  malefactors  been  truly  as- 
certained, there  could  have  been  no  action 
on  the  discovery.  There  was  not  space  to 
hold,  or  force  to  guard,  any  increased  num- 
ber of  prisoners.  And  to  have  singled  out 
the  culprits  by  name,  and  branded  them  by 
a  sort  of  anticipated  conviction,  and  yet 
have  permitted  them  to  roam  at  large,  in- 
termingling freely  with  the  crew,  with  the 
halter  of  the  law  about  their  necks,  would 
only  have  made  the  culprits  themselves 
more  infuriated  and  desperate;  while  the 
government  of  the  ship,  by  exposing  its 


own  imbecility,  would  have  sunk  into  dis- 
repute and  contempt. 

"  Between  the  arrest  of  Mr.  Spencer  and 
the  execution,  the  mutinous  indications  were 
unceasing.  Yet  were  they  deep  rather  than 
loud.  The  fire  beneath  the  surface  which 
causes  the  earthquake,  reserves  for  the  hour 
of  the  explosion  its  more  palpable  and  aw- 
ful demonstrations.  In  this  instance,  es- 
pecially, the  mutiny 'had  now  been  taught 
by  its  own  brief  history  to  be  circumspect 
and  subtle.  Nevertheless  the  flame,  covered 
but  not  suppressed,  gave  ceaseless  and  sure 
signs  that  the  time  of  its  bursting  forth  was 
near  at  hand.  The  general  disobedience 
of  orders  when  first  announced,  and  the  stern 
defiance  with  which  they  were  afterward 
obeyed  when  more  peremptorily  repeated ; 
the  frequent  gathering  of  the  older  and 
stronger  of  the  crew  in  groups  for  secret 
consultation,  and  their  stealing  away  at  the 
approach  of  an  officer,  or  else  changing  the 
discourse  to  some  indifferent  subject,  and 
raising  their  voices  to  the  ordinary  key  ; 
the  carrying  away  of  the  main-top-gallant- 
mast  by  the  sudden  and  violent  jerk  of  the 
weather-royal-brace  by  Small,  who  had  just 
left  the  side  of  Cromwell,  evidently  by  de- 
sign, and  with  the  intent  to  throw  overboard 
the  boy  on  the  royal-yard,  that  confusion 
and  a  chance  for  the  outbreak  might  thence 
ensue  ;  the  simultaneous  mustering  of  the 
chief  conspirators  at  the  maintop-mast-head 
on  that  occasion,  watching  the  moment  for 
action,  to  which  point  was  also  directed  the 
fixed  and  anxious  gaze  of  Mr.  Spencer; 
the  refusal  of  the  men  to  come  aft  at  first, 
when  ordered  there  to  aid  in  sending  up  the 
new  top-gallant-mast,  and  then  the  tumultu- 
ous rushing  thither  by  nearly  all  the  crew, 
stamping  with  their  feet — an  outrage  made 
more  suspicious  by  its  happening  after»dark ; 
the  repetition  of  the  same  seditious  conduct 
on  the  following  evening,  when  the  crew 
were  called  aft  to  the  main-trysail-sheet, 
with  the  further  circumstance  that  the  rush- 
ing aft  was  continued  even  after  the  crew 
had  been  distinctly  ordered  to  return  for- 
ward ;  the  repeate'd  missing  of  the  muster 
without  excuse  by  those  named  in  the  Greek 
paper,  in  defiance  of  the  government  of  the 
ship  ;  the  mysterious  removal  of  the  hand- 
spikes, heavers,  and  holystones,  so  as  to 
make  them  accessible  to  the  conspirators  at 
the  moment  of  need,  and  the  sharpening  of 


NAVAL  COURT  MARTIAL. 


235 


the  African  knife  and  battle-axe ;  the  stealthy 
•glances  of  the  conspirators  toward  the  pla- 
ces in  the  wardroom  and  steerage  where 
the  officers  off  duty  kept  their  arms  ;  the 
declaration  by  one  of  the  conspirators  that 
he  would  like  to  get  the  African  knife  into 
the  hands  of  Mr.  Spencer,  and  that  the  knife 
would  yet  have  to  do  a  great  deal  of  slaugh- 
ter ;  the  raising  of  a  handspike  in  a  threat- 
ening manner  by  the  same  conspirator 
against  an  officer,  whom  he  sought  to  take 
unawares  ;  the  ceaseless  efforts  of  those 
named  in  the  Greek  paper  to  steal  aft  under 
pretence  of  some  call  of  duty,  so  as  to  be 
near  the  prisoners,  watching  an  opportunity 
for  communication  with  them,  and  the  fre- 
quent interchange  of  significant  glances 
between  the  prisoners  and  them  ;  the  sul- 
lenness  and  moroseness  of  the  crew  ;  their 
whisperings  ;  the  seditious  expressions 
which  were  occasionally  overheard  ;  the 
insolent  and  menacing  tone  assumed  by 
them ;  their  ominous  expressions  of  dis- 
pleasure at  the  prisoners  being  kept  in 
irons ;  are  among  the  numberless  circum- 
stances which  collectively  force  on  the  in- 
telligent and  experienced  observer  the  full 
conviction  that  the  mutiny  was  rapidly  ma- 
turing for  its  final  outbreak.  Add  to  these 
the  dark  and  portentous  looks  of  the  crew, 
which,  like  the  lowering  sky  presaging  a 
tornado,  a  seaman's  eye  could  detect  and 
appreciate,  but  which  a  seaman's  tongue 
can  not  adequately  describe.  The  sullen- 
ness  and  moroseness,  the  violent  and  mena- 
cing demeanor,  and  the  portentous  looks  of 
the  crew  between  the  arrest  of  Mr.  Spen- 
cer and  the  execution,  are  not  the  creations 
of  fancy.  Every  officer  and  many  of  the 
seamen  have  sworn  to  their  existence.  All 
these  witnesses  would  not  league  together 
to  deceive  you  ;  and  they  could  not  have 
been  themselves  deceived.  They  are  nau- 
tical men,  well  acquainted  with  the  usual 
manners,  demeanor,  and  looks  of  seamen, 
and  were  eye-witnesses  of  what  they  state. 
They  observed  the  ominous  appearances 
from  hour  to  hour  and  from  day  to  day,  and 
watched  with  care  their  fearful  progress. 
That  one  witness  might  be  mistaken  in  such 
a  case  is  not  very  unlikely  ;  that  a  number 
of  witnesses  should  be  mistaken,  is  against 
all  probability.  To  reject  their  united  evi- 
dence as  fabulous  or  imaginative,  would  be 
to  destroy  that  faith  which  man,  from  his 


social  relations,  is  bound  to  place  in  the 
testimony  of  his  fellow  men. 

"  But  to  oppose  all  these  accumulated 
proofs,  M'Kinley,  M'Kee,  Green,  and  some 
others,  whose  names  appear  on  the  Greek 
paper,  have  been  introduced  on  the  part  of 
the  prosecution,  and  elevated  to  the  rank 
of  witnesses  in  a  court  of  justice.  By  that 
paper  M'Kinley  and  M'Kee  had  prominent 
posts  specially  assigned  them  in  the  med- 
itated massacre.  They  with  Green  were 
brought  home  in  irons ;  and  all  the  conspir- 
ators stand  candidates  for  trial  before  the 
proper  tribunal  of  their  country  for  life  or 
death.  Their  own  safety  required  that  they 
should  boldly  deny  the  existence  of  the  mu- 
tiny ;  and,  if  Mr.  Spencer  correctly  esti- 
mated their  character,  their  denial  was  not 
likely  to  falter  through  any  delicacy  of  con- 
science. To  felons  leagued  in  a  conspiracy 
of  murder  and  of  piracy,  it  would  seem  a 
slight  thing  to  superadd  the  crime  of  wilful 
falsehood.  Comment  upon  such  witnesses 
would  be  a  useless  waste  of  time  ;  nor  is  it 
worth  while  to  marshal  against  them  the 
phalanx  of  opposing  testimony  ;  they  are 
left  to  sink  under  their  own  weight. 

"  The  omission  to  examine  Wilson,  to 
whom  the  Greek  paper  likewise  assigned  a 
chief  place  in  the  meditated  massacre,  and 
who  was  the  actor  in  the  scenes  of  the  Af- 
rican knife,  the  handspike,  and  the  battle- 
axe,  and  who  was  also  brought  home  in 
irons,  is  a  virtual  admission  that  the  prose- 
cutor was  afraid  to  examine  him ;  that,  if 
examined,  he  would  have  betrayed  secrets 
fatal  to  the  prosecution,  and  which  are  still 
locked  up  in  the  breasts  of  the  conspira- 
tors. 

"  The  slander  sometimes  suggested,  that 
the  officers  of  the  Somers  were  rendered 
nervous  by  unmanly  fear,  betrays  an  igno- 
rance of  the  case,  and  of  the  true  character 
of  the  American  naval  officer.  Of  himself 
the  commander  would,  in  this  respect,  say 
nothing.  But  of  his  eleven  associate  offi- 
cers, he  is  bound  to  say  that  never  were 
men,  in  perilous  circumstances,  more  cool, 
collected,  and  temperate,  than  they.  They 
proposed  no  hasty  effusion  of  blood,  though 
conscious  that  their  own  lives  were  in  mo- 
mentary peril.  After  the  discovery  of  the 
mutiny,  five  days  and  nights  were  given  to 
dispassionate  and  solemn  deliberation.  Nor 
was  the  execution  recommended  until  it  had 


236 


PROCEEDINGS  OF  THE 


been  gradually  ascertained,  by  melanchbly 
proofs,  accumulating  daily  and  hourly,  that 
the  experiment  of  reiterated  arrests,  instead 
of  breaking  the  heart  of  the  conspiracy,  had 
only  rendered  it  more  ferocious  and  despe- 
rate. Unmanly  fear,  it  is  believed,  is  not 
wont  to  be  an  inmate  in  the  bosoms  of 
American  naval  officers.  Our  youthful  na- 
vy has  produced  many  heroes  ;  perhaps  few 
cowards.  Unmanly  fear  would  heretofore 
have  been  thought  a  strange  malady  in  our 
naval  service.  It  did  not,  "  in  times  that 
tried  men's  souls,"  display  itself  in  our  ves- 
sels of  war  on  the  lakes,  or  on  the  ocean. 
That  this  malady  should  have  its  first  out- 
break in  the  Somers — that  it  should  have 
spread  at  once,  from  officer  to  officer,  until 
all  were  infected,  without  one  exception — 
and  that  its  morbid  influence  should,  in  ev- 
ery instance,  have  destroyed  the  healthful 
exercise  of  the  mental  vision,  the  judgment, 
and  the  memory — is  a  supposition  which, 
to  gain  credence,  should  rest  on  something 
besides  mere  suggestion. 

"  From  the  arrest  of  Mr.  Spencer  to  the 
execution,  the  officers  of  the  Somers  had 
upon  them  a  heavy  weight  of  labor  and  re- 
sponsibility. They  stood  sentinels  on  the 
deck,  and  ultimately  had  no  alternative  but 
to  remain  there  under  arms  day  and  night, 
watch  and  watch  about.  To  the  refreshing 
influence  of  quiet  sleep  they  had  become 
strangers.  Fatigue  and  consuming  care 
were  wasting  away  their  youthful  frames. 
Nature  would  have  endured  the  struggle  but 
little  longer.  And  while  their  physical 
strength  was  hourly  becoming  less  and  less, 
the  danger  was  hourly  becoming  greater 
and  greater.  It  was  now  manifest  that  the 
government  of  the  brig  had  been  despoiled  of 
its  moral  power.  It  was  lost ;  that  instinct 
of  discipline,  that  loyalty  to  authority,  "  that 
subordination  of  the  heart,"  which  form  the 
conservative  elements  in  that  little  floating 
world,  a  national  ship.  Anarchy,  deep  and 
wide-spread,  was  predominant ;  and  physi- 
cal force  had  become  the  sole  arbitress. 
The  conspiracy,  confident  in  its  strength, 
matured  in  its  counsels,  and  murderous  in 
its  resolves,  was  now  ripe  for  action.  Im- 
plements of  wood  and  of  iron  were  always 
at  hand,  well  suited  to  arm  the  malefactors 
for  a  hasty  and  close  combat.  A  sudden 
accident,  abstracting  the  attention  of  the  of- 
ficers ;  or  the  confusion  incident  to  a  squall 
at  sea ;  or  even  the  cover  of  a  dark  night, 


might,  at  any  moment,  have  brought  the 
mutiny  to  a  successful  issue.  And  what 
would  have  been  the  consequence  ?  I  pass 
over  the  murder  of  the  officers  and  faithful 
of  the  crew,  as  comparatively  a  very  little 
thing.  The  lives  of  military  men,  whether 
on  land  or  at  sea,  are  plighted  to  their  coun- , 
try  ;  and  compared  to  the  honor  of  that  coun- 
try, individual  life  is  as  the  drop  of  the 
ocean.  But  the  nation's  honor  was  now  at 
stake.  An  American  vessel  of  war  was 
about  to  become  a  piratical  cruiser.  A  ves- 
sel which  had  been  born  into  our  naval  fam- 
ily, and  consecrated  as  a  defender  of  her 
country's  glory,  and  one  of  the  protectors 
of  the  great  commonwealth  of  civilized  man, 
was  about  to  be  torn  from  her  sphere,  and 
let  loose  a  lawless  wanderer  upon  the  deep, 
I  carrying  along  in  her  devious  course,  like  a 
comet  loosened  from  its  orbit,  devastation, 
and  terror,  and  death.  Perhaps  no  vessel 
could  be  found  better  fitted  to  become  the 
pest  of  the  ocean.  Seldom  surpassed  in 
speed,  by  anything  propelled  by  sails  ;  of 
sufficient  strength  to  overcome  merchant- 
men ;  so  small  and  light  that,  if  pressed  by 
superior  force,  she  might  retire  beyond  their 
reach,  and  hide  herself  in  shoal  water  ;  ca- 
pable of  supplying  herself,  from  her  prizes, 
with  men,  naval  stores,  provisions,  and  wa- 
ter— she  might  have  made  her  home  on  the 
seas,  without  ever  entering  port.  There, 
swift  and  destructive  as  the  pestilence,  by 
turns  showing  herself  on  the  Atlantic,  and 
then  in  the  Pacific  and  Indian  Oceans,  she 
might  have  been  the  world's  terror  for  years, 
without  its  being  known  whence  the  scourge 
came,  or  whither  it  went. 

"  Under  these  circumstances,  what  was 
the  commander  of  the  Somers  to  do  ?  He 
was  alone  on  the  ocean.  He  could  not  in- 
voke a  regular  court-martial.  He  asked 
the  best  and  only  counsel  within  his  reach. 
He  made  a  written  appeal  to  his  officers  for 
their  advice.  His  officers,  after  examining 
the  witnesses,  and  with  full  deliberation, 
returned  him  their  written,  unanimous,  and 
solemn  judgment,  that  the  execution  of  the 
three  ringleaders  of  the  mutiny  was  indis- 
pensably necessary  for  the  safety  of  the 
vessel,  and  the  lives  of  the  faithful  on  board. 
With  this  judgment  of  the  only  court  within 
his  reach,  his  own  opinion  concurred.  The 
high  seas  furnished  no  learned  jurists  with 
whom  he  might  consult.  But  he  had  with 
him  a  volume  of  nature's  laws,  written  by 


NAVAL  COURT  MARTIAL. 


237 


the  finger  of  God  on  the  human  heart.  In 
that  volume  he  read  that  necessity  ordains 
its  own  controlling  canons ;  that  they  who 
seek  unlawfully  to  slay,  may  themselves  be 
slain  without  formal  process,  when  the  self- 
preservation  of  the  assailed  renders  the  sac- 
rifice inevitable.  And,  above  all,  he  found, 
in  that  same  volume,  the  natural  elements 
of  national  jurisprudence  ;  and  there  he 
read,  that  when,  on  some  remote  station,  or 
on  the  solitary  deep,  the  commanding  offi- 
cer, by  land  or  sea,  bound,  as  it  were  by  an 
oath,  to  protect,  at  the  expense  of  life,  or 
hundreds  of  lives,  the  vital  interests  and  sa- 
cred honor  of  his  country,  shall  find  those 
vital  interests  and  that  sacred  honor  about 
to  be  deeply  and  incurably  wounded  by  a 
band  of  apostate  felons,  and  that  the  evil 
can  not  be  averted  but  by  the  death  of  those 
felons,  without  the  formalities  of  law,  he  is 
in  duty  bound  to  rouse  up  his  spirit  to  the 
majesty  of  the  occasion,  arid,  poising  him- 
self on  his  own  magnanimity,  grasp,  with 
unfaltering  hand,  the  sword  of  righteous, 
though  summary  retribution.  The  execu- 
tion took  place.  It  was  foreseen  that  the 
remedy  would  be  decisive  ;  for  of  the  mal- 
contents there  were  none,  save  Mr.  Spen- 
cer, Cromwell,  and  Small,  who  could  navi- 
gate the  vessel ;  and  it  was  known  that 
guilt  would  not  trust  itself  to  the  broad  ocean 
without  a  navigator. 

"  The  commander  of  the  Somers  was  in- 
fluenced by  no  private  motives.  He  had 
no  feeling  of  personal  hostility  against  the 
prisoners.  To  the  deep  agony  which  their 
fate  caused  him  his  officers  have  borne  wit- 
ness. He  was  conscious  that  the  nation 
which  he  served  was  jealously  alive  to  any 
unusual  exertion  of  power ;  and  that,  upon 
his  return  home,  he  would  be  called  to  a 
strict  account  for  the  shedding  of  blood  not 
drawn  from  the  public  and  declared  ene- 
mies of  his  country.  He  was  not  unmind- 
ful that  the  distinguished  father  of  the  chief 
culprit  held  an  office  of  high  trust  and  au- 
thority, and  that  the  hostile  influence  of  that 
father  would  be  an  evil  not  lightly  to  be 
encountered.  But  the  exigency  of  the  case 
impelled  him  forward.  The  path  of  honor 
and  conscience  was  rugged,  but  it  was  plain. 
There  was  no  by-path  to  the  right  or  to 
the  left,  by  which  he  could  escape.  And 
he  trusts  that,  had  the  chief  culprit  been  of 
his  own  blood,  he  would  not  have  faltered 
in  the  career  of  duty. 


"  Upon  his  return  home,  the  commander 
learned  that  the  law  of  nature,  which  he 
had  studied  and  obeyed,  was  also  the  law 
of  his  country.  It  is  believed  to  be  the  law 
of  the  civilized  world.  Perhaps  no  name 
stands  higher  in  British  jurisprudence  than, 
that  of  Edward  Law,  afterward  chief  justice 
of  England,  by  the  title  of  Lord  Ellenbor- 
ough.  In  January,  1802,  less  than  three 
months  before  he  was  promoted  to  the 
bench,  he  conducted,  in  his  then  capacity 
of  attorney  general,  a  public  prosecution 
against  Joseph  Wall,  for  an  alleged  murder 
at  the  Island  of  Goree,  in  Africa,  of  which 
island  he  had  been  governor.  The  act  com- 
plained of  was  one  of  needless  and  atro- 
cious cruelty.  Under  the  pretence  of  a 
mutiny  of  doubtful  existence,  without  a  gen- 
eral or  regimental  court-martial,  of  which 
the  materials  were  at  hand,  and  without  any 
necessity  urging  immediate  action,  as  the 
mutiny,  if  any,  was  past,  the  governor  had 
caused  a  soldier  to  be  whipped  800  lashes, 
with  a  rope  eight  times  as  thick  as  the  ordi- 
nary cat-o'-nine-tails.  To  do  the  work  ef- 
fectually, he  had  employed  five  or  six  strong 
negroes,  specially  selected  for  the  purpose, 
who,  in  the  spirit  of  emulation,  each  whip- 
ped with  all  his  might  till  he  was  tired,  and 
then  passed  the  rope  to  a  fresh  hand ;  and 
thus  the  rope  went  round  among  the  negroes 
in  succession  until  the  whole  number  of 
lashes  had  been  inflicted.  The  governor 
had  stood  by  to  enjoy  the  scene,  repeatedly 
urging  the  negroes  to  whip  harder — *  to  cut 
him  to  the  liver,  to  cut  him  to  the  heart.' 
The  soldier  had  died  of  his  hurts,  and  the 
brutal  governor  was  condemned  and  exe- 
cuted. But  even  on  that  occasion,  when 
the  torrent  of  righteous  indignation  seemed 
to  be  bearing  all  before  it,  the  attorney  gen- 
eral rose  above  his  feelings  as  a  man  to  a 
sense  of  his  duty  as  the  representative  of 
his  king  and  country,  and  carefully  laid 
down  to  the  jury,  as  a  landmark  for  their 
government,  the  great  principle  contained 
in  the  following  extract  from  his  speech. 
The  application  of  the  extract  to  the  case 
of  the  Somers,  generally  and  specially,  in 
all  its  parts  and  bearings,  is  too  obvious  to 
need  comment : — 

"  '  But  let  it  not/  says  he,  '  be  understood 
on  that  account  that  there  may  not  be  cir- 
cumstances— it  will  be  for  Governor  Wall 
to  show  that  such  circumstances  existed — 
which  may  constitute  a  sufficient,  adequate, 


238 


PROCEEDINGS  OF  THE 


and  full  defence  for  a  military  officer,  in  the 
infliction  of  punishment,  without  either  a 
general  or  a  regimental  court-martial ;  foi 
if  there  be  that  degree  of  imminent  neces- 
sity which  supersedes  the  recourse  to  any 
ordinary  tribunal — if  there  be  actually  ex- 
isting that  flagrant  mutiny  which  must  ei- 
ther be  suppressed  by  force,  and  by  the 
immediate,  though  irregular  application  of 
severe  punishment,  or  must  be  left  to  rage 
uncontrolled,  at  the  utmost  peril  of  public 
safety,  that  which  I  was  just  now  pronoun- 
cing to  be  irregular  becomes,  if  the  more 
regular  and  appropriate  course  of  proceed- 
ing in  such  cases  can  not  be  resorted  to, 
itself  regular  and  capable  of  being  justified 
upon  every  principle  of  public  duty ;  for  it 
imports  the  public  safety  that  the  means  of 
resisting  an  enormous  and  overbearing  evil 
should  be  as  strong,  sudden,  and  capable  of 
application,  as  the  evil  itself  is  capable  of 
immediate  mischievous  effect ;  and  if  this 
has  been  the  case  here,  it  will  carry  its  own 
justification  with  it.  Gentlemen,  upon  this 
occasion,  therefore,  it  will  be  most  import- 
ant for  the  prisoner  to  establish  that  there 
existed,  in  point  of  fact,  a  mutiny.  When 
he  has  established  in  point  of  fact  (if  he 
can  do  so)  that  there  existed  a  mutiny  ;  if 
he  can  go  farther,  and  show  that  the  ordi- 
nary modes  of  trial  could  not  be  resorted 
to,  and  that,  upon  conference  with  the  offi- 
cers, that,  which  on  the  emergency  was 
thought  best  to  be  done,  was  done,  and  that 
there  was  no  wanton  abuse  of  power  in  the 
infliction  of  the  punishment,  the  prisoner 
will  be  entitled  to  go  quit  of  the  charge 
made  upon  him  by  this  indictment.'* 

"  Lord  Chief  Baron  Macdonald,  who  pre- 
sided at  this  trial  (assisted  by  Justices  Lau- 
rence andRooke),  unequivocally  ratified  the 
rule  of  law  as  laid  down  by  the  attorney 
general. 

"  The  great  principle  of  universal  juris- 
prudence thus  laid  down  by  the  future  Lord 
Ellenborough  to  the  English  jury,  and  con- 
firmed by  the  English  court  had  been  pre- 
viously recognised  as  a  part  of  the  Amer- 
ican code,  and  carried  into  practice  by 
Washington  himself  in  the  case  of  the 
Jersey  mutiny  in  1781.  The  following 
is  extracted  from  Marshall's  Life  of  Wash- 
ington : — 

"  General  Washington,  who,  though  satis- 
fied with  the  conduct  both  of  the  civil  and 
*  XXVIII.  HowelPs  State  Trials,  60. 


military  officers,  had  been  extremely  morti- 
fied at  the  issue  of  the  mutiny  in  the  Penn- 
sylvania line,  and  who  was  now  confident 
of  the  reliance  to  be  placed  in  the  fidelity 
of  the  eastern  troops,  who  were  composed 
of  natives,  determined  by  strong  measures 
to  stop  the  further  progress  of  a  spirit  which 
threatened  the  destruction  of  the  army.  In 
pursuance  of  this  determination,  he  imme- 
diately ordered  a  detachment  to  march 
against  the  mutineers,  and  to  bring  them  to 
unconditional  submission.  General  How, 
who  commanded  this  detachment,  was  in- 
structed to  make  no  terms  with  the  insur- 
gents while  they  had  arms  in  their  hands, 
or  were  in  a  state  of  resistance  ;  and  as 
soon  as  they  should  surrender,  to  seize  a  few 
of  the  most  active  leaders,  and  to  execute 
them  on  the  spot.  These  orders  being 
promptly  and  implicitly  obeyed,  the  Jersey 
mutineers  were  compelled  to  return  to  their 
duty.'* 

"  The  very  words  used  by  General  Wash- 
ington in  his  letter  to  General  How,  dated 
22d  January,  1781,  are  as  follows  :  '  If  you 
suceed  in  bringing  the  revolted  troops  to 
surrender,  you  will  instantly  execute  a  few 
of  the  most  active  and  incendiary  leaders.'! 
This  order  for  instantaneous  execution  could 
not  have  contemplated  either  a  general  or 
regimental  court-martial,  the  formation  and 
action  of  which  are  always  attended  with 
some  delay.  It  is  true  that  General  How 
says  that  '  a  field  court-martial  was  present- 
ly held.'  But  this  field,  or  as  it  is  more 
generally  called,  drum-head  court-martial, 
is  not  known  to  the  statute  law  of  this 
country  or  of  England.  It  is  the  mere  crea- 
ture of  urgent  necessity,  which,  as  in  the 
case  of  the  Somers,  may  not  brook  delay ; 
and  it  is  of  no  more  legal  validity  than  the 
consultation  of  officers  on  board  that  vessel. 
Its  design  is  simply  to  aid  the  judgment  of 
the  commander,  and  to  show  the  world  that 
he  has  acted  with  the  best  advice  allowed 
by  the  exigency  of  the  case.  On  the  trial 
of  Governor  Wall,  the  learned  attorney 
general  in  speaking  of  a  field,  or  drum-head 
court-martial,  says :  '  It  is  not  a  trial,  but 
something  that  the  necessity  of  the  case 
overlooks.'^ 

"  The  following  is  an  extract  from  the 
joint  remarks  of  Lord  Mansfield  and  Lough- 

*  IV.  Marshall's  Washington,  368.     . 
fVII.  Sparks's  Washington,  38). 
JXXVJII.  Howell's  State  Trials,  101. 


NAVAL  COURT  MARTIAL, 


borough,  in  the  case  of  Johnstone  against 
Sutton : — 

"  '  The  salvation  of  this  country  depends 
upon  the  discipline  of  the  fleet ;  without 
discipline,  they  would  be  a  rabble,  danger- 
ous only  to  their  friends,  and  harmless  to 
the  enemy  ;  commanders,  in  a  day  of  battle,' 
(and  the  same  remark  applies,  perhaps, 
more  strongly  to  a  day  of  pressing  mutiny), 
*  must  act  upon  delicate  suspicions  ;  upon 
the  evidence  of  their  own  eye.'* 

"  Only  one  more  authority  will  be  cited. 
Sir  James  Mariott,  the  distinguished  admi- 
rality  judge,  in  a  charge  delivered  by  him 
to  the  jury  in  1792,  expresses  himself  as 
follows : — 

" '  You  will  call  to  mind  continually  the 
state  and  condition  of  the  parties  concerned, 
the  nature  of  their  lives,  business,  and  ne- 
cessities. Consequently,  in  judging  of  mat- 
ters committed  upon  the  high  seas,  you  will 
take  into  view  the  state  of  society  upon  that 
element,  where  all  is  violence.  This  con- 
sideration makes  a  great  difference  between 
actions  at  sea,  and  actions  on  land,  where 
everything  comes  within  the  sight  and 
knowledge  of  the  neighborhood,  and  where 
the  peace  and  tranquillity  of  the  subject  is 
generally  secure  under  a  mild  and  moderate 
government.  You  will  have  to  judge  of  fe- 
rocious men,  possessed  of  few  but  strong 
ideas,  peculiar  to  their  employment ;  of  men 
hardened  by  danger,  and  fearless  by  habit. 
The  subjects  of  your  deliberation  are  actions 
done  on  a  sudden  ;  vehement  from  the  na- 
ture and  necessity  of  the  occasion.  The 
preservation  of  ships  and  lives  depends 
often  upon  some  act  of  severe,  but  neces- 
sary discipline.  These  scenes  of  violence 
present  no  very  amiable  picture  of  human 
nature  ;  but  such  violence  is  frequently  jus- 
tifiable, sometimes  absolutely  necessary  ; 
because,  without  it,  no  commerce,  no  navi- 
gation, no  defence  of  the  kingdom,  can  be 
maintained.  The  consideration  of  this 
should  soften  the  rigor  of  judgment,  which 
might  otherwise  be  made  on  land  by  per- 
sons ignorant  and  inexperienced  of  what  is 
done  at  sea.  It  is  painful  to  observe  that, 
without  the  greatest  care  in  weighing  of 
evidence,  no  commander  or  officer  of  a  ship 
can  be  safe  upon  his  trial.  In  charge  of 
the  lives  and  properties  of  other  men,  con- 
tending with  the  most  ferocious,  upon  an 
ungovernable  element,  a  commander  is 
•I.  Durnford  and  East,  549. 


placed  every  moment  in  danger  oi'  the  loss 
of  character  and  life.  A  ship  is  a  little 
government,  compressed  into  a  narrow 
compass,  in  which  there  can  be  no  hope  of 
security  for  any  man  on  board,  without  a 
rapid  and  strong  occasional  exertion  of  an 
absolute  power  placed  in  one  man.  Like 
other  governments  and  situations,  the  com- 
mand of  a  ship  is  open  to  the  most  horrid 
general  combinations  and  conspiracies,  with 
all  their  consequences,  fit  to  make  the  stout- 
est heart  tremble.  The  passions  operate  at 
sea  without  control ;  and  all  on  board  of  a 
ship  is  too  often  a  scene  of  misery,  terror, 
disorder,  license,  resentment,  and  revenge.'* 
"  The  notion  recently  suggested  that  the 
council  of  officers  on  board  the  Somers 
should  have  proceeded  more  formally,  and 
having  first  served  written  charges  on  the 
accused,  should  have  conducted  the  exami- 
nation in  their  presence,  subject  to  their 
cross-examination,  and  regular  defence,, 
could  not  have  been  carried  into  effect. 
Each  of  the  three  persons  executed,  had, 
at  the  time  of  his  arrest,  been  distinctly  in- 
formed of  the  charge  against  him  ;  and  two- 
of  them  had  afterward  repeatedly  plead 
guilty  to  the  charge.  The  certainty  of  the 
guilt  of  all  the  three,  had  been  placed  be- 
yond peradventure  by  the  ocular  view  of 
the  commander,  and  the  summary  inquest 
before  the  council  of  officers.  A  regular 
trial  was  utterly  precluded  by  the  exigency 
of  that  awful  occasion.  Necessity  stood 
stem  umpire,  and  allowed  no  time  for  the 
ceremonies  or  delays  of  the  law.  The  two 
investigations  of  the  case  on  land,  with 
every  desire  of  the  courts  to  proceed  with 
despatch,  have  occupied,  that  before  the 
court  of  inquiry  at  least  twenty  days,  and 
this  before  the  present  court-martial  more 
than  forty  days ;  and  had  the  proposed 
regular  trial  at  sea  continued  but  one  tenth 
of  the  shortest  of  those  times,  it  would,  to  a 
moral  certainty,  have  been  interrupted  and 
superseded  by  the  threatened  catastrophe, 
which,  in  the  twinkling  of  an  eye,  would 
have  substituted  for  the  reign  of  law,  *  the 
reign  of  terror.'  The  very  exposure  of  the 
fact  that  the  trial  of  the  mutiny  was  for- 
mally going  on  for  life  or  for  death,  impli- 
cating of  course  the  unconfined,  as  well 
as  the  confined  guilty,  would  of  itself  have 
produced  a  concussion  that  could  not  have 
failed  to  hasten  on  the  crisis. 
*  Bee's  Report's,  110. 


240 


PROCEEDINGS  OF  THE 


"  It  has  been  sometimes  said  that  the 
Somers  might  have  left  at  St.  Thomas,  in 
the  custody  of  the  government  there,  the 
prisoners  who  caused  the  danger.  The 
propriety  of  such  a  course  may  be  thought 
doubtful,  even  if  the  brig  could  have  reach- 
ed that  island  in  safety.  An  American 
ship-of-war  is  always  deemed  competent  to 
meet  an  enemy  from  without  of  a  force  not 
superior  to  her  own  ;  much  more  must  she 
be  deemed  competent  to  meet  and  quell,  by 
her  own  power,  an  enemy  from  within.  If 
she  is  not  capable  of  maintaining  her  own 
discipline,  she  ought  not  to  be  held  worthy 
to  fight  her  country's  battles.  It  would 
seem  to  be  a  degradation  to  our  flag  for  an 
American  ship-of-war  to  invoke  the  aid  of 
a  foreign  government  to  sustain  the  disci- 
pline, or  quell  the  insurrection  of  her  own 
crew. 

"  But  these  speculations  are  foreign  to 
the  pending  trial.  The  evidence  repels  the 
supposition  that  the  Somers  could  have 
reached  St.  Thomas  in  safety  with  all  the 
prisoners  alive.  There  was  every  reason 
to  believe  that  what  the  conspirators  in- 
tended to  do  they  would  do  quickly.  Mr. 
Wales  had  understood  from  Mr.  Spencer 
that  the  mutiny  was  to  take  effect  very 
shortly,  and  even  before  their  arrival  at  St. 
Thomas.  The  arrest  of  Mr.  Spencer  and 
six  of  his  associates,  instead  of  retarding, 
was  likely  to  accelerate  the  catastrophe. 
Under  the  exasperation  caused  by  their  ar- 
rest, everything  indicated  an  immediate 
outbreak.  The  forebodings  of  the  uncon- 
fined  culprits  that  the  commander  might 
invoke  even  the  arm  of  foreign  law  at  St. 
Thomas,  and  cause  them  to  be  sent  home 
in  irons,  by  safe  conveyances,  to  meet  their 
country's  doom,  lent  the  stimulant  of  des- 
peration to  the  other  causes  of  excitement ; 
and  it  is  more  than  probable,  that  had  the 
execution  not  taken  place  when  it  did,  the 
squall  which  followed  in  the  evening  of  that 
day  would  have  been  the  signal  for  the 
final  explosion.  The  bearing  away  of  the 
Somers  for  some  other  West  India  island 
would  have  been  a  still  more  dangerous  ex- 
pedient. The  brig  would  not  have  escaped 
the  risks  incident  to  the  passage  to  St. 
Thomas  ;  and  the  sudden  departure  from 
the  known  course  of  the  voyage  would 
have  been,  virtually,  an  official  admission 
that  the  mutiny  was  too  strong  for  the  au- 
thorities of  the  ship,  and  that  the  bearing 


away  was  but  a  flight  from  the  dreaded 
danger  to  crave  protection  from  the  govern- 
ment on  shore.  Such  an  admission,  while 
it  would  have  disheartened  the  faithful, 
could  not  have  failed  to  give  strength  to  the 
ranks  of  the  faithless.  It  would  have  con- 
firmed the  wavering  in  their  adhesion  to 
the  mutiny,  and  imparted  fresh  courage  to 
the  confirmed  in  guilt.  That  a  crisis  would 
have  been  suddenly  forced  on  is  almost  be- 
yond a  doubt.  The  conspirators  would 
have  hesitated  little  in  the  choice  of  the 
two  paths  before  them — the  one  leading  to 
the  irons,  the  prison,  and  the  gallows  of  the 
law ;  the  other  conducting,  as  they  would 
then  have  boldly  expected,  through  blood 
and  massacre,  to  a  sure  and  prompt  victory, 
sweetened  by  revenge,  and  crowning  all 
their  desperate  hopes. 

"  To  enable  the  court  the  better  to  judge 
of  the  necessity  of  the  execution,  permit 
me  to  bring  the  case  to  another  test.  Sup- 
pose that  the  execution  had  not  taken  place  ; 
that  the  unconfined  malcontents  had  risen 
and  released  the  prisoners  ;  that  the  mutiny 
had  triumphed,  and  the  brig  been  turned  in- 
to a  piratical  cruiser :  that  the  faithful  of 
the  officers  and  crew  had  been  all  massa- 
cred, except  the  commander  alone ;  that, 
from  a  refinement  in  cruelty,  the  pirates  had 
spared  his  wretched  life,  and  sent  him  on 
shore  that  he  might  be  forced  to  wend 
home  his  solitary  way,  and  become  himself 
the  disgraced  narrator  of  what  would  then 
indeed  have  been  the  *  tragedy  of  the  Som- 
ers.' With  what  a  burst  of  indignation 
would  the  country  have  received  his  narra- 
tive!  How  would  the  American  press, 
with  its  thousand  tongues,  have  overwhelmed 
him  with  exclamations  and  interrogatories 
like  these  :  *  You  were  seasonably  urged, 
by  the  unanimous  voice  of  your  trusty  offi- 
cers, to  save  their  lives,  the  lives  of  your 
faithful  seamen,  and  the  honor  of  your 
country,  by  the  timely  execution  of  these 
malefactors,  who  deserved  to  die,  and  whose 
immediate  death  was  imperiously  demand- 
ed by  the  exigencies  of  the  case.  Why 
did  you  not  heed  the  counsel,  the  earnest 
counsel,  of  your  associates  in  authority — 
your  constitutional  advisers,  with  whose 
opinion  your  own,  too,  concurred  ?  You 
did  not  because  you  dared  not.  You  fal- 
tered in  the  path  of  known  and  acknowl- 
edged duty,  because  you  wanted  moral 
courage  to  tread  it.  On  you,  in  the  judg- 


NAVAL  COURT  MARTIAL. 


241 


merit  of  conscience,  devolves  the  responsi- 
bility of  those  murders,  which  you  might 
and  ought  to  have  prevented.  On  you  re- 
coils the  disgrace  of  that  flag  which  never 
sustained  a  blot  until  it  was  committed  to 
your  charge.'  To  finish  the  picture,  per- 
mit me  to  fill  up  another  part  of  the  can- 
vass. Suppose  that  the  Somers,  now  turned 
pirate,  while  cruising  off  our  coast,  had 
been  permitted  by  Heaven,  in  an  evil  hour, 
to  capture  some  vessel  plying  between  this 
and  Europe,  freighted  with  the  talent  and 
beauty  of  the  land.  The  men  are  all  mur- 
dered, and  the  females,  including  perhaps 
the  new-made  wife,  and  maidens  just  bloom- 
ing into  womanhood,  are  forced  to  become 
the  brides  of  pirates.  A  universal  shriek 
of  agony  bursts  from  the  American  people 
throughout  all  their  vast  domains ;  and  the 
wailing  is  echoed  back  from  the  whole 
civilized  world.  And  where  then  could 
the  commander  of  the  Somers  have  hidden 
'his  head,  branded,  as  it  would  have  been, 
by  a  mark  of  infamy  as  indelible  as  that 
stamped  on  the  forehead  of  Cain  ! 

"  The  case  of  the  Somers  may  form  an 
epoch  in  our  naval  history.  Should  the 
course  of  the  commander  be  approved  by 
his  country,  mutinies  in  our  ships-of-war 
will  probably  hereafter  be  of  rare  occur- 
rence. But  should  this  court,  or  the  high 
tribunal  of  public  opinion,  pronounce  sen- 
tence of  condemnation  on  the  course  which 
he  felt  himself  bound  to  pursue,  it  is  respect- 
fully yet  solemnly  submitted  that  the  sen- 
tence will  be  the  signal  for  the  general  prev- 
alence of  insubordination  in  our  navy.  The 
means  and  subjects  of  mutinous  excitement 
are  always  at  hand.  Filled  with  men  of 
mixed  national  character ;  crowded  with 
•spirits  as  turbulent  as  the  elements  on 
which  they  dwell,  the  ship's  berth-deck 
«ver  abounds  in  materials  of  combustion, 
which  a  single  spark  may  ignite.  The 
commander  must  quench  the  flame,  even 
if  it  is  sometimes  done  by  the  sacrifice  of 
life.  He  must  suppress  a  mutiny  in  his 
little  empire  by  the  application  of  all  need- 
ful force.  No  degree  of  force  is  superfluous 
or  unlawful,  that  is  necessary  for  the  sup- 
pression. Effectual  suppression  is  the  only 
point  at  which  he  can  rightfully  stop.  He 
must  move  to  that  point  with  a  cautious,  not 
with  a  faltering  step.  He  must  employ 
gentle  means,  if  they  will  reach  the  evil ;  if 
not,  he  must  resort  to  severer  measures,  and 
31 


if  need  be  even  to  the  severest.  He  may 
give  such  time  to  mild  expedients  as  the 
safety  of  the  ship  will  allow  ;  not  a  moment 
longer.  But  if  his  country's  reproach  is  to 
be  the  meed  of  his  faithfulness,  other  com- 
manders will  take  warning  from  his  exam- 
ple. They  will  suffer  the  rage  of  mutiny 
to  pursue  its  fearful  course,  rather  than  ar- 
rest it  by  the  sure  sacrifice  of  their  own 
character.  They  will  risk  the  chance  of 
being  cloven  down  at  sea  by  the  weapons 
of  the  mutineers,  leaving  to  them  the  choice 
of  time,  place,  and  mode  of  attack,  rather 
than  incur  the  certain  fate  of  perishing  at 
home  by  the  daggers  of  calumny.  They 
love  their  country;  for  their  native  land 
they  would  cheerfully  die  ;  but  they  can  not 
even  for  that  beloved  country,  willingly  lose 
for  ever  their  own  most  precious  character. 
The  love  of  character  is  not  the  least  of  the 
motives  which  have  induced  them  to  relin- 
quish their  peaceful  hearths,  and  make  their 
home  on  the  unquiet  seas.  And  to  sacrifice 
their  good  name — '  the  immediate  jewel  of 
their  souls' — even  on  the  altar  of  public 
weal,  requires  a  sublimity  of  patriotism  be- 
yond the  flight  of  ordinary  men. 

"  Discipline  is  the  first  and  second  and 
third  virtue  in  the  naval  code.  It  was  dis- 
cipline, perhaps  more  than  even  courage, 
which,  during  our  last  war  with  England, 
enabled  our  little  navy  to  work  its  miracles 
on  the  lakes  and  upon  the  ocean.  Of  these 
glorious  achievements,  the  commander  of 
the  Somers  may  speak  without  egotism,  for 
he  was  not  then  of  an  age  to  participate  in 
their  dangers  or  their  fame.  The  electric 
shock  then  communicated  to  an  astounded 
world,  can  never  be  forgotten ;  for  it  has 
passed  into  the  immortal  pages  of  history. 
The  great  British  historian  of  the  present 
century  speaks  of  it  in  these  glowing  terms  : 
'  When,  therefore,'  he  says,  '  it  was  seen 
that  in  repeated  instances  of  combats  of  sin- 
gle vessels  of  the  same  class  against  each 
other,  the  ships  of  the  United  States  had 
proved  victorious,  the  English  were  stunned 
as  by  the  shock  of  an  earthquake  ;  the 
Americans  were  immeasurably,  and  with 
good  reason,  elated ;  and  the  other  nations 
in  Europe  thought  they  discerned  at  last 
the  small  cloud  arising  over  the  ocean  which 
was  to  involve  the  British  maritime  power 
in  destruction.'*  And  the  cause  of  these 

*  X.  Alison's  History  of  Europe,  672. 


242 


PROCEEDINGS  OF  THE 


discomfitures  the  same  author  more  than 
hints  at  in  the  next  page  but  one.  He  there 
says :  '  Experience  has  now  proved,  that 
long-continued  and  unexampled  success  had 
produced  its  wonted  effect  in  relaxing  the 
bands  of  British  naval  preparation  ;  and  that 
they  had  much  need  to  recollect  that,  in  the 
language  of  the  ancient  conquerors  of  the 
world,  the  word  for  an  army  was  derived 
from  the  verb  to  exercise.''  It  was,  then,  the 
Spartan  discipline  of  our  navy,  no  less  than 
its  Spartan  valor,  that  enabled  it  to  triumph 
over  the  proud  mistress  of  the  ocean.  Let 
discipline  for  ever  be  regarded  as  its  sheet- 
anchor  ;  and  let  it  never  be  forgotten  that 
subordination  is  the  life,  and  mutiny  the 
death  of  discipline.  In  this  view  of  the 
subject,  the  nominal  party  here  sinks  into 
comparative  unimportance,  and  the  Ameri- 
can nation  rears  its  august  form,  entreating 
that  her  youngest,  her  favorite  offspring, 
may  be  saved  from  its  worst  enemy — that  it 
may  be  saved  from  the  demoralizing,  de- 
structive principle  of  insubordination. 

"  All  of  which  is  respectfully  submitted. 
"ALEX.  SLIDELL  MACKENZIE, 

"  Commander  U.  S.  Navy. 

"MARCH  22,  1843." 

The  court  was  then  cleared,  and  the 
reading  of  the  testimony  commenced. 

The  court  adjourned,  at  3,  P.  M.,  till  to- 
morrow, March  23,  at  10  o'clock. 


U.  S.  NAVY  YARD,      > 
Brooklyn,  March23,  1843.  $ 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,          Com'dr  Ogden, 
"       Storer,  "       Shubrick, 

Members ; 

and  W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

The  reading  of  the  testimony  was   re- 
sumed. 

The  court  adjourned,  at  3,  P.  M.,  until 


tomorrow  (Friday),  the  24th,  at  10  o'clock,. 
A.  M. 


U.  S.  NAVY  YARD, 
Brooklyn,  March  24,  1843. 
The  Court  met  this  day,  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 

Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members ; 

and  W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

The  journal  of  the  preceding  day  was 
read  and  approved. 

The  reading  of  the  testimony  was  re- 
sumed. 

The  Court  adjourned,  at  3  o'clock,  P.  M., 
until  to-morrow  (Saturday),  the  25th,  at  10> 
o'clock,  A.  M. 


U.  S.  NAVY  YARD,       > 
Brooklyn,  March  25,  1843.  J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 
"       Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members  : 

and  W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

The  journal  of  the  preceding  day  was  j 
read  and  approved. 

The  reading  of  the  testimony  was  re- 
sumed. 

The  Court  adjourned,  at  3  o'clock,  P.  M., 
until  Monday,  the  27th,  at  10  o'clock,  A.  M. 


NAVY  YARD,  ) 

Brooklyn,  March  27,  1843.  J 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 

Read,  "        Page, 

"       Bolton,  "       Gwinn, 


NAVAL  COURT  MARTIAL. 


243 


Captain  Turner,      Captain  Wyman, 
"       Sloat,          Com'dr  Ogden, 
"       Storer,  "        Shubrick, 

Members ; 

and  W.  H.  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

The  journal  of  the  preceding  day  was 
read  and  approved,  the  reading  of  the  tes- 
timony resumed  and  concluded.  The  judge 
advocate  then  read  the  accompanying  paper 
marked  A.  (see  Appendix  A.) 

The  Court  then  adjourned  at  3  o'clock, 
P.M.,  until  to-morrow  (28th),  at  10  o'clock. 

U.  S.  NAVY  YARD, 
Brooklyn,  March  28,  1843. 
The  Court  met  this  day  in  pursuance  of 
adjournment.     Present — 

Captain  Downes,     Captain  McKeever, 

Read,  "       Page, 

"       Bolton,  "       Gwinn, 

"       Turner,  "       Wyman, 

"       Sloat,  Com'dr  Ogden, 

"       Storer,  "       Shubrick, 

Members ; 

and  W.  II .  Norris,  Esq.,  of  Baltimore,  Judge 
Advocate. 

The  journal  of  the  preceding  day  was 
read  and  approved.  And  the  court  being 
cleared,  the  court  proceeded  to  consider  the 
charges  and  specifications,  and  to  make 
their  rinding  thereon. 

This  business  being  concluded,  the  court 
adjourned  to  Saturday,  the  1st  of  April, 
1843,  at  half  past  10  o'clock,  A.  M. 

Finding  of  the  Court  Martial  in  the  case  of 
Com'' dr.  Alex.  Slidell  Mackenzie. 

At  a  naval  general  court  martial,  con- 
vened by  order  of  the  secretary  of  the  navy 
on  board  the  U.  S.  ship  North  Carolina, 
and  subsequently  removed  by  his  order  to 
a  convenient  place  in  the  navy  yard  at 
Brooklyn,  for  the  trial  of  such  persons  as 
might  be  brought  before  it  by  virtue  of 
charges  from  the  navy  department, — Com- 
mander Alexander  Slidell  Mackenzie  was 
arraigned  on  the  2d  of  February,  1843,  un- 
der charges  and  specifications  preferred 
against  him  by  the  secretary  of  the  navy. 

The  court  having  heard  and  duly  consid- 
ered, the  evidence  and  testimony  offered  un- 
der said  charges  and  specifications,  do  find — 

That  the  first  specification  under  first 
charge  is  not  proved  ; 

That  the  second  specification  under  first 
charge  is  not  proved  ; 


That  the  third  specification  under  first 
charge  is  not  proved ; 

That  the  first  charge  is  not  proved  : 
That  the  first  specification  under  second 
charge  is  not  proved  ; 

That  the  second  specification  under  sec- 
ond charge  is  not  proved ; 

That  the  third  specification  under  second 
charge  is  not  proved  ; 

That  the  second  charge  is  not  proved : 
That  the  first  specification  under  charge 
third  is  not  proved  ; 

That  the  second  specification  under 
charge  third  is  not  proved  ; 

That  the  third  specification  under  charge 
third  is  not  proved  ; 

That  the  third  charge  is  not  proved  : 
That   the    fourth    charge   having    been 
waived  by  the  judge  advocate,  and  no  evi- 
dence or  testimony  being  offered  to  sustain 
it,  the  court  took  no  action  on  it : 

That  the  specification  under  the  fifth 
charge,  being  deemed  by  the  judge  advocate 
too  vague,  was  waived  by  him  ;  no  one 
having  complained  to  the  department  of  any 
specific  ill  treatment,  it  could  not  be  more 
specific,  as  the  department  had  no  particu- 
lar information :  the  court,  therefore,  took 
no  action  on  it. 

As  far  as  evidence  was  offered  under 
charge  fifth,  the  court  do  find  no  proof  of 
mistreatment  of  the  crew  of  the  Somers 
generally  by  Commander  Mackenzie,  nor 
of  individual  maltreatment,  and  therefore 
find  it  not  proved. 

The  court,  therefore,  do  acquit  Comman- 
der Alexander  Slidell  Mackenzie  of  the 
charges  and  specifications  preferred  by  the 
secretary  of  the  navy  against  him. 

JOHN  DOWNES, 
Presid't  of  the  Court. 
GEO.  C.  READ, 
W.  C.  BOLTON, 
DAN.  TURNER, 

Confirmed,  JOHN  D.  SLOAT, 

A.  P.  UpsHjra.  GEO.  W.  STORER, 

J.  M'KEEVER, 
BENJ.  PAGE, 
JOHN  GWINN, 
T.  W.  WYMAN, 
H.  W.  OGDEN, 
J. 
Test: 

WILLIAM  H.  NORRIS, 

Judge  Advocate. 
28th  March,  1843. 


244 


PROCEEDINGS  OF  THE 


YARD,  April  1,  1843. 
The  Court  met  pursuant  to  adjournment. 
^Present — 

Captain  M'Keever, 

Gwinn, 
"       Page, 
"       Wyman, 
Com'dr  Ogden, 
"       Shubrick, 
Members; 


Captain  Downes, 
"       Read, 
"       Bolton, 
Turner, 
Sloat, 

41       Smith, 
" '      Storer, 
and  W.  H.  Norris,  of  Baltimore,  Judge  Ad- 
vocate. 

The  president  of  the  court  then  read  the 
following  letter  from  the  secretary  of  the 
navy ; — 

"  NAVY  DEPARTMENT,       ) 
11  March  24,  1843.  $ 

"  SIR  :  Your  letter  of  the  22d  of  March, 
informing  me  that  the  case  of  Commander 
Mackenzie  will  probably  close  on  Monday 
next,  has  been  received. 

"  I  have  this  day  written  to  the  judge  ad- 
vocate, to  know  whether  the  developments 
of  this  case  render  it  necessary  to  proceed 
.against  the  parties  now  under  arrest  for  al- 
leged mutiny,  or  any  of  the  officers.  If  it 
be  necessary  to  try  them,  they  must  be  ar- 
raigned ;  if  it  be  not  necessary,  the  court 
will  dissolve  on  the  termination  of  Com- 
mander Mackenzie's  case. 

"  I  am,  respectfully,  your  obedient  ser- 
vant, 

"  A.  P.  UPSHUR. 
"  Commo.  JOHN  DOWNES, 

"  Pres'oTt  Naval  Gen.  C.  M., 
New-York:' 

The  judge  advocate  then  prepared  and 
read  the  following  paper : — 

"  The  judge  advocate  states  to  the  court 
that,  a  long  time  back,  he,  in  pursuance  of 
instructions  from  the  navy  department  on 
the  subject,  [requested]  Mr.  Sedgewick,  the 
counsel  of  Captain  Mackenzie,  to  draw  up 
charges  against  any  of  the  crew  of  the 


Somers  against  whom  there  was  testimony 
of  any  participation  in  the  alleged  mutiny ; 
that  this  was  done  with  the  knowledge  and 
assent  of  Commander  Mackenzie  ;  and  that 
so  far  from  hearing  of  any  intention  to  pre- 
fer charges,  it  is  believed  that  Commander 
Mackenzie  has  no  such  design. 

"  It  is  certain  none  are  presented.  Com- 
mander Mackenzie  not  being  present,  he 
was  sent  for  to-day,  and  the  court  was  in- 
formed by  the  provost  martial  that  he  was 
absent  at  his  residence  in  the  country,  thirty 
miles  distant. 

"  The  judge  advocate  further  slates,  that 
it  is  his  opinion  that  each  and  all  of  the 
crew,  who  have  been  discharged  from  cus- 
tody by  the  civil  authorities  of  New  York, 
remain  still  liable  to  any  charges  the  de- 
partment may  see  fit  to  prefer ;  such  inter- 
ference with  prisoners  of  the  United  States, 
incarcerated  to  await  indictment  and  trial, 
being  just  as  illegal  as  a  like  attempt  of  the 
civil  authorities  to  interfere  with  those  in 
the  jails  of  a  neighboring  State.  The 
whole  interference  has  been  void,  and  the 
jurisdiction  of  the  United  States  is  exclu- 
sive and  sole. 

The  judge  advocate  further  states,  that 
he  has,  some  time  heretofore,  written  the 
department  that  he  did  not  consider  it  his 
duty  or  right  to  determine  the  propriety  of 
preferring  charges  against  the  other  officers 
of  the  Somers. 

Under  these  circumstances,  the  judge 
advocate  can  see  no  objection  to  the  final 
adjournment  of  the  court,  as  he  has  no  busi- 
ness to  lay  before  them. 

"  WILLIAM  H.  NORRIS, 

"  Judge  Advocate" 

The  Court  then  adjourned,  sine  die. 
JOHN  DOWNES, 
President  of  the  Court. 
WILLIAM  H.  NORRIS, 

Judge  Advocate. 
April  1,  1843. 


NAVAL  COURT  MARTIAL. 


245 


APPENDIX. 


NEW  YORK,  Feb. 17, 1843. 
SIR  :  The  charges  in  the  case  I  am  now 
trying  are  preferred  by  the  Secretary  of 
the  Navy  vs.  Commander  Mackenzie.  Your 
letter  of  the  15th  leaves  it  questionable 
whether  those  that  may  be  preferred  against 
any  of  the  crew  are  to  be  in  the  name  of 
the  secretary  of  the  navy  or  of  Commander 
Mackenzie,  as  complainant.  Be  pleased, 
sir,  to  give  me  instructions  on  this  point. 

I  would  likewise  ask  you,  sir,  to  direct 
me  authenticated  copies  of  the  several  re- 
ports from  first  to  last  that  have  been  made 
by  Commander  Mackenzie  to  the  depart- 
ment to  be  sent  as  early  as  practicable. 
They  may  serve  to  give  fhe  pending  case 
its  proper  position  and  elucidation. 

I  have  the  honor  to  be,  very  respectfully, 
your  obedient  servant, 

WILLIAM  H.  NORRIS, 

Judge  Advocate. 
Hon.  A.  P.  UPSHUR. 

NEW  YORK,  FEB.  22,  1843. 
SIR  :  Immediately  after  receiving  your 
letter  relative  to  the  preparation  of  charges 
against  some  of  the  crew  of  the  Somers,  I 
apprized  Commander  Mackenzie  that  my 
engagements  would  not  admit  the  execution 
of  the  duty  by  myself,  and  pointed  out  to 
him  a  competent  person,  the  assistant  of  the 
district  attorney  here,  as  a  suitable  person, 
to  which  he  assented.  Upon  application  to 
him,  he  first  acceded  and  afterward  desired 
to  withdraw,  before  he  entered  on  the  task. 
I  then  told  Commander  Mackenzie  he  might 
select  whom  he  pleased,  and  he  named  Mr. 
Sedgwick,  to  whom  the  task  will  no  doubt 
be  confided  by  Commander  Mackenzie. 
He,  however,  intimated  to  me  that  for  the 
present  he  would  only  propose  charges 
against  a  person  by  the  name  of  Wilson. 

I  have  the  honor  to  be,  very  respectfully, 
your  obedient  servant, 

WILLIAM  H.  NORRIS, 

Judge  Advocate. 
Hon.  A.  P.  UPSHUR, 

Secretary  of  the  Navy. 
The  following  is  a  copy  of  the  official  an- 
nouncement of  the  finding  of  the  court-mar 


tial  in  the  case  of  Commander  Mackenzie, 
taken  from  the  Madisonianof  April  14, 1843  : 

(Official.) 

Charge  1. — Murder  on  the  high  seas  on 
board  of  a  United  States  vessel. 

Specification  1  alleged  that  Commander 
Mackenzie,  then  commanding  the  United 
States  brig  Somers,  did,  on  the  1st  Decem- 
ber, 1842,  on  the  high  seas,  in  latitude  17  de- 
grees, 33  minutes,  and  28  seconds,  and  longi- 
tude 57  degrees,  57  minutes,  and  45  seconds, 
without  form  of  law,  wilfully,  deliberately, 
and  with  malice  aforethought,  hang,  and  caus- 
ed to  be  hanged  by  the  neck,  at  the  yard-arm. 
of  said  brig,  until  he  was  dead,  Philip 
Spencer,  a  midshipman,  then  serving  on 
board  ;  thereby  violating  the  21st  article  of 
the  1st  section  of  the  act  of  Congress  en- 
titled, "  An  act  for  the  better  government  of 
the  navy  of  the  United  States,"  approved 
April  23,  1800. 

Specification  2  alleges  the  same  thing  in 
regard  to  Samuel  Cromwell,  boatswain's 
mate,  &c. 

Specification  3,  in  relation  to  Elisha 
Small,  seaman. 

Charge  2. — Oppression,  under  three  spe- 
cifications, the  same  as  the  others,  except, 
that  they  allege  he  did,  without  form  of  law, 
and  without  good  and  sufficient  cause,  op- 
pressively kill  by  hanging,  &c.,  &c. 

Charge    3. — Illegal    punishment — three 
specifications  as  above,  except  that   they  ' 
charge   that  he  did,  of  his  own  authority, 
and  contrary  to  the  act  of  Congress  in  such 
cases  made  and  provided,  kill,  &c.,  &c. 

Charge  4. — Conduct  unbecoming  an  officer. 

Specification — In  that  he  used  taunting 
and  insulting  language  to  Spencer  at  the 
moment  of  his  execution. 

Charge  5. — Cruelty  and  oppression. 

Specification — In  that  he  habitually  in- 
flicted cruel  and  unnecessary  punishment 
upon  his  crew. 

Finding  of  the  court  in  Commander 
Alexander  Slidell  Mackenzie's  case. 

On  the  1st  charge  and  its  three  specifi* 
cations,  the  court  finds — 


\ 


246 


PROCEEDINGS  OF  THE 


That  the  1st  specification  is  not  proven  ; 

That  the  2d  specification  is  not  proven  ; 

That  the  3d  specification  is  not  proven ; 

That  the  1st  charge  is  not  proven. 

On  the  2d  charge  and  its  three  specifica- 
tions, the  court  finds — 

That  the  1st  specification  is  not  proven  ; 

That  the  2d  specification  is  not  proven ; 

That  the  3d  specification  is  not  proven ; 

That  the  2d  charge  is  not  proven. 

On  the  3d  charge  and  its  three  specifica- 
tions, the  court  finds — 

That  the  1st  specification  is  not  proven  ; 

That  the  2d  specification  is  not  proven ; 

That  the  3d  specification  is  not  proven ; 

That  the  3d  charge  is  not  proven. 

That  the  4th  charge  being  waved  by  the 
judge  advocate,  and  no  testimony  or  evi- 
dence being  offered  to  sustain  it,  the  court 
took  no  action  upon  it. 

The  specification  of  the  fifth  charge, 
being  deemed  by  the  judge  advocate  too 
vague,  was  waived  by  him.  No  one  having 
complained  to  the  department  of  specific 
ill-treatment,  it  could  not  be  made  more 
specific,  as  the  department  had  no  particu- 
lar information.  The  court,  therefore,  took 
no  action  upon  it. 

As  far  as  evidence  was  offered  under  the 
5th  charge,  the  court  find  no  proof  of  mis- 
treatment of  the  crew  of  the  Somers  gene- 
rally, by  Commander  Mackenzie,  nor  of  in- 
dividual maltreatment,  and  therefore  find  it 
not  proved. 

The  court  do,  therefore,  acquit  Comman- 
der Alexander  S.  Mackenzie  of  all  the 
charges  and  specifications  preferred  against 
him  by  the  secretary  of  the  navy. 

As  these  charges  involved  the  life  of  the 
^accused,  and  as  the  finding  is  in  his  favor, 
he  is  entitled  to  the  benefit  of  it,  as  in  the 
analogous  case  of  a  verdict  of  not  guilty 
before  a  civil  court,  and  there  is  no  power 
which  can  constitutionally  deprive  him  of 
that  benefit.  The  finding,  therefore,  is 
simply  confirmed,  and  carried  into  effect 
without  any  expression  of  approbation  or 
disapprobation  on  the  part  of  the  President ; 
no  such  expression  being  necessary. 


A. 

It  is  not  the  duty  of  a  judge  advocate  to 
sum  up  the  facts  except  in  extraordinary 
cases,  when  directed  by  the  prosecuting 


department  to  apply  for  this  privilege  to  the 
discretion  of  the  court,  with  whom  it  rests 
to  allow  or  forbid  it ;  or,  when  requested  by 
the  court  themselves.  It  is  my  good  for- 
tune to  escape  this  painful  and  arduous  la- 
bor— as  invidious  as  arduous — by  the  deli- 
cate reserve  of  the  secretary,  disposing  him 
to  abstain  from  giving  me  any  instructions 
as  to  such  an  application,  which  has  been 
thus  left  to  my  own  discretion.  I  make 
none. 

In  relation  to  the  law  I  have,  however, 
an  official  duty  to  discharge,  and  I  trust  I 
shall  be  excused,  in  a  case  of  such  exciting 
interest  and  importance,  in  giving  perma- 
nent form  to  the  opinions  I  am  thus  called 
on  to  give,  and  so  placing  them  beyond  the 
reach  of  misapprehension,  and  securing 
them  from  forgetfulness — I  owe  that  much 
to  myself.  In  discharging  this  task,  I  shall 
observe  as  much  brevity  as  the  comprehen- 
sive nature  of  the  subject  will  admit,  and 
shall  entirely  refrain  from  canvassing  the 
testimony. 

The  first  half  of  this  paper,  I  may  re- 
mark, will  be  found  almost  identical  with 
that  read  to  the  court  in  the  commencement 
of  the  case  ;  the  one  which  was  intended 
as  its  substitute  was  destroyed  by  an  acci- 
dental fire  in  my  apartment. 

The  principles  involved  in  this  case  are 
of  the  most  momentous  importance.  The 
case  will  be  a  precedent  for  the  most  seri- 
ous part  of  marine  police  law,  if,  after  a 
careful  scrutiny  and  reflection,  it  meet  the 
favor  of  the  judicious  portion  of  the  commu- 
nity, who  may  be  competent  to  pronounce 
upon  it.  The  trial  to  be  sure  has  been  that 
of  an  officer  of  a  public  armed  vessel,  but 
inasmuch  as  the  securities,  and  the  means 
of  enforcing  his  authority,  are  infinitely  su- 
perior to  those  enjoyed  by  a  commander  in 
the  merchant  service,  it  will  be  the  lowest 
standard  for  the  exercise  of  power  to  all 
who  occupy  analogous  positions  in  the  com- 
mercial marine.  The  obedience  exacted  of 
one  in  a  ship-of-war  is  of  a  different  char- 
acter from  that  required  of  persons  in  the 
merchant  service.  In  the  former  the  pen- 
alties for  transgression  are  more  severe  than 
in  the  latter,  and  properly  so.  But  when 
punishment,  extending  to  the  deprivation  of 
life,  is  justified  on  the  score  of  necessity, 
the  difference  between  public  and  private 
vessels  ceases  in  time  of  peace,  save  in  one 
particular.  For  in  both  it  must  be  the  last 


NAVAL  COURT  MARTIAL. 


247 


resort  of  reasonable  firmness  and  sagacity, 
acting  with  a  due  regard  for  the  preserva- 
tion of  the  vessel  and  the  lives  of  the  offi- 
cers and  crew.  The  single  particular  of 
discrimination  is  this  :  That  the  officer  of  a 
public  armed  ship  must  maintain  the  com- 
mand of  his  charge,  though  sure  of  personal 
exemption  from  danger  of  death.  Nothing 
will  so  perspicuously  illustrate  the  senti- 
ments of  congress  on  this  point,  as  the  per- 
tinent clauses  of  the  legislative  enactments. 
An  exact  transcription  is  an  uninteresting 
mode  of  presenting  these,  but  it  is  more 
faithful  than  any  endeavor  to  imbody  their 
requisitions  and  the  privileges  which  they 
confer  in  a  more  summary  way  could  be. 

By  article  13,  section  1,  of  the  act  of 
1800,  it  is  provided — "  If  any  person  in  the 
navy  shall  make,  or  attempt  to  make,  any 
mutinous  assembly,  he  shall,  on  conviction 
thereof  by  a  court  martial,  suffer  death  ; 
and  if  any  person,  as  aforesaid,  shall  utter 
any  seditious  or  mutinous  words,  or  shall 
conceal  or  connive  at  any  mutinous  or  sedi- 
tious practices,  or  shall  treat  with  contempt 
his  superior,  being  in  the  execution  of  his 
office,  or  being  a  witness  to  any  mutiny  or 
sedition,  shall  not  do  his  utmost  to  suppress 
it,  he  shall  be  punished  at  the  discretion  of 
a  court  martial." 

By  article  14  of  section  1  of  same  act,  it 
is  provided — "  No  officer  or  private  in  the 
navy  shall  disobey  the  lawful  orders  of  his 
superior  officer,  or  strike  him,  or  draw  or 
offer  to  draw  or  raise  any  weapon  against 
him,  while  in  the  execution  of  the  duties  of 
his  office,  on  pain  of  death,  or  such  other 
punishment  as  a  court  martial  shall  inflict." 

By  article  20  of  same  act,  section  1,  it  is 
provided — "If  any  person  in  the  navy  shall 
sleep  upon  his  watch,  or  negligently  per- 
form the  duty  assigned  him,  or  leave  his 
station  before  regularly  relieved,  he  shall 
suffer  death,  or  such  other  punishment  as  a 
court  martial  shall  adjudge  ;  or,  if  the  offen- 
der be  a  private,  he  may,  at  the  discretion 
of  the  captain,  be  put  in  irons,  or  Hogged, 
not  exceeding  twelve  lashes." 

By  article  19  of  section  1  of  same  act,  it 
is  provided — "  If  any  person  in  the  navy 
shall,  through  inattention,  negligence,  or  any 
other  fault,  suffer  any  vessel  of  the  navy  to 
be  stranded,  or  run  upon  rocks,  or  shoals, 
or  hazarded,  he  shall  suffer  such  punishment 
as  a  court  martial  shall  adjudge." 


And  by  section  3  of  same  act,  it  is  pro- 
vided— "  If  any  officer  or  private,  after  the 
loss  of  a  vessel  by  wreck,  act  contrary  to 
the  discipline  of  the  navy,  he  shall  be  pun- 
ished at  the  discretion  of  a  court  martial." 

These  legislative  provisions  most  forcibly 
and  clearly  prescribe  the  duties  of  the  sea- 
men and  officers  of  the  navy,  and  provide 
for  their  infraction  the  most  formidable  pen- 
alties. Mutiny,  or  any  attempt  at  mutiny, 
is  liable  to  only  one  punishment,  that  of 

!  death.     This  is  peculiar  to  the  navy.     In. 

1  the  act  of  1807,  for  the  government  of  the 
army  (article  7),  the  same  crime  is  made 
punishable  "  with  death,  or  such  other  pun- 
ishment as  by  court  martial  shall  be  in- 
flicted." Here  some  discretionary  power 
of  mitigating  the  punishment  is  conferred. 
But  in  the  rules  for  the  government  of  the 
navy,  no  such  power  is  given.  The  par- 
doning prerogative  is  vested  solely  in  the 
president,  or  in  the  commander  of  a  fleet  or 
squadron  when  on  foreign  service.  This 
evinces  the  sense  of  congress,  that  the  crime 
of  mutiny  in  the  navy  is  one  of  the  most 
aggravated  and  heinous  character,  by  rea- 
son of  the  exposed  situation  of  the  national 
marine ;  and  that  the  legislative  power 
deemed  it  a  duty  to  invest  the  national 
property  on  the  ocean,  and  the  agents  to 
whom  it  is  intrusted,  with  all  the  safeguards 
which  the  severest  laws  and  most  fearful 
penalties  could  create. 

The  principles  of  public  policy  upon 
which  such  legislation  is  based  are  too  ob- 
vious to  require  comment,  when  it  is  recol- 
lected that  the  navy  is  one  of  the  chief 
weapons  of  sovereignty,  and  by  necessity 
removed  on  -the  high  seas  from  the  immedi- 
ate observation  and  succor  of  the  national 
authority,  and  its  owners — the  people.  A 
draft  on  the  militia  could  speedily  and  ef- 
fectually quell  the  rebellion  of  a  portion  of 
the  soldiery ;  and  thus  the  comparative 
harmlessness  of  a  revolt  upon  the  land,  to 
what  the  same  crime  is  upon  the  water,  af- 
fords reasonable  grounds  for  granting  to 
courts  martial  a  discretionary  power  in  the 
punishment  of  such  offenders  in  the  army. 
It  is  because  the  property  and  agents  of 
the  navy  and  army  are  national,  are  so  inti- 
mately connected  with  the  sovereignty  of 
the  seas  and  land  ;  because  their  ability  de- 
pends so  essentially  on  the  preservation  of 
perfect  discipline,  that  in  either  service  the 


• 


248 


PROCEEDINGS  OF  THE 


crime  of  mutiny  is  visited  with  such  dread- 
ful punishment.  As  respects  their  individ- 
ual protection,  officers  stand  under  the  com- 
mon aegis  of  impartial  law.  It  is  not  for 
their  sakes  merely,  that  their  authority  is 
so  jealously  protected  while  they  are  in 
charge  of  national  property.  The  agents  of 
a  factory,  the  slaves  on  a  plantation,  may 
conspire  against  authority  ;  but  death  is  not 
the  award  of  their  offence  in  such  a  combi- 
nation. But  if  the  authority  and  property 
be  national,  and  military  or  naval,  the  dread 
enforcement  of  implicit  obedience  attaches. 

The  distinction  is  made  still  more  obvi- 
ous by  an  examination  of  the  legislation 
with  respect  to  mutiny  in  the  merchant  ser- 
vice. By  the  act  of  1835,  chapter  313,  sec- 
tion 1,  the  offence  of  mutiny  in  the  mer- 
chant service  is  relieved  of  the  penalty  of 
death,  and  subjected  to  the  infliction  of  a 
fine  not  exceeding  two  thousand  dollars,  and 
imprisonment  for  ten  years  ;  and,  by  sec.  2, 
the  attempt  to  mutiny  or  revolt  is  made  punish- 
able by  the  infliction  of  a  fine  not  exceeding 
one  thousand  dollars,  and  imprisonment  for 
a  term  not  exceeding  five  years. 

We  have  seen  that  in  the  naval  service, 
by  one  of  the  above  recited  provisions,  any 
disobedience  of  the  lawful  orders  of  an  offi- 
cer, or  menace  of  violence  to  his  person, 
while  in  the  execution  of  his  duty,  may  be 
punished  with  death.  Why  is  this  so  ?  It 
is  not  for  the  consecration  of  his  life,  or  his 
dignity  as  a  citizen,  but  as  a  trustee.  It  is 
meant  to  invest  the  representatives  of  the 
national  power  with  this  almost  kingly  at- 
tribute, in  order  that  they  may  be  enabled 
to  discharge  with  satisfaction  the  duties  of 
their  trust,  and  because  that  trust  requires 
unhesitating  and  uniform  obedience.  No 
similar  protection  guards  even  the  presi- 
dent and  lawgivers  of  the  nation  ;  but  they 
themselves  have  originated  and  authentica- 
ted those  distinctive  enactments  for  the 
functionaries  of  the  army  and  navy  for  the 
sake  of  the  public  interest,  and  for  that  only. 

We  thus  see  incontestably  the  value  and 
magnitude  of  the  responsibilities  imposed 
upon  officers,  and  the  vast  importance  of 
the  trust  confided  to  them  ;  and  in  propor- 
tion to  the  protection  with  which  the  law 
encircles,  can  be  perceived  the  imposition 
of  corresponding  duties.  The  same  statutes 
recite  their  obligations. 

It  is  unnecessary  to  examine  any  of 
them,  except  with  reference  to  the  navy. 


Whoever  "  does  not  do  his  utmost  to  sup- 
press a  mutiny  or  sedition,"  is  left  to  the 
fate  which  a  court  martial  may  award  him ; 
whoever  negligently  performs  his  duty,  ac- 
cording as  consequences  are  serious,  is 
liable  to  death,  or  whatever,  inferior  punish- 
ment his  tribunal  may  pronounce  ;  whoever, 
by  any  fault,  shall  suffer  the  vessel  with 
which  he  is  intrusted,  to  be  "  hazarded,"  is 
liable  to  such  punishment  as  his  peers  may 
adjudge.  Rights  and  duties  are  made  cor- 
relative. Can  any  one  reflect  on  the  nature 
of  these  without  the  conviction,  that  it  is 
the  duty  of  an  officer  in  charge  of  a  ship-of- 
war,  while  acting  bone  fide  in  the  service 
of  his  country,  to  maintain  the  command  of 
his  vessel  at  every  hazard  and  cost,  which  a 
man  of  ordinary  firmness,  sagacity,  and  pru- 
dence, would  deem  the  necessary  and  only 
competent  resource  ?  Looking  to  the  stat- 
utory provisions  for  his  power  and  obliga- 
tions, would  not  the  commander  of  a  na- 
tional vessel,  who  should  suffer  his  authority 
to  be  usurped,  rather  than  execute  muti- 
neers, if  such  fatal  resource  were  the  only 
suitable  preventive,  be  himself  liable  to 
suffer  death,  or  the  equivocal  mercy,  which 
would  affix  the  equal  stigma  of  cashier- 
ment? 

Assuming  that  the  guilty  intention,  or  re- 
volt, were  manifest  by  such  legal  evidence 
as  would  produce  conviction  in  the  mind  of 
a  man  of  competent  firmness  and  judgment,, 
taken  after  the  prescribed  forms  of  law,  or 
as  nearly  in  accordance  with  them,  as  the 
exigency  of  the  case  would  allow ;  and  as- 
suming  that  the  execution  of  the  ringleaders 
in  the  conspiracy  would  suppress  it,  and  ( 
was  the  only  feasible  expedient  by  reason- 
able probability,  would  not  such  an  officer 
be  justly  liable  to  punishment,  even  if  his 
rebellious  crew  were  to  assure  him  that  his 
life  would  be  unharmed,  that  he  should  be 
kept  and  sent  ashore  at  whatever  land  might 
be  made,  and  that  the  sole  object  of  the 
mutiny  was  to  dispossess  him  of  his  lawful 
authority  with  as  little  violence  as  possible, 
would  not  death,  or  cashierment,  be  his 
fate  at  the  hands  of  a  court  martial,  for  not 
having  done  his  utmost  to  suppress  the  de- 
fection from  duty  ?  If  the  mutiny  menace 
his  life,  he  has  the  additional  usual  private 
right  of  self-preservation. 

In  the  case  of  a  wreck,  and  two  persons 
have  hold  of  a  plank  which  is  sufficient  to 
buoy  only  one,  the  right  to  force  off  the 


NAVAL  COURT  MARTIAL. 


249 


other  into  the  sea,  has  been  allowed  by  law, 
by  virtue  of  this  privilege  of  self-preserva- 
tion. It  can,  from  necessity,  consign  even 
innocence  to  death  ;  but  the  necessity  must 
be  extreme,  absolute,  and  impending. 

Such  are  believed  to  be  correct  princi- 
ples, whether  as  respects  the  duty  of  an 
officer,  or  the  prerogatives  of  a  mere  private 
citizen.  I  have  been  stating  his  duty,  and 
not  the  ground  and  kind  of  discretion  in  par- 
ticular, by  which  he  is  to  be  governed  in 
the  discharge  of  that  duty.  These  points 
have  generally  been  alluded  to ;  but  it  is  in- 
tended hereafter  to  specify  them  with  a  le- 
gal accuracy,  and  to  support  what  is  stated 
in  detail  by  authorities. 

The  nature  of  the  guilt  of  mutiny,  and  an 
officer's  duty  in  respect  to  its  suppression, 
have  been  now  disposed  of.  We  advance 
then  another  step — the  manner  in  which 
the  fact  of  the  existence  of  a  mutiny  is  to 
be  ascertained,  and  the  mode  of  trial. 

On  referring  to  the  act  of  1800,  art.  13, 
sec.  1,  and  art.  41,  it  will  be  found  that  mu- 
tineers are  supposed,  in  instances  allowing 
of  trial,  to  be  discovered  to  be  such  by  the 
judgment  of  a  court-martial,  and  that,  when 
the  sentence  shall  be  capital,  the  concur- 
rence of  two  thirds  of  the  members  of  the 
judicial  tribunal  shall  be  required,  and  the 
execution  of  the  sentence  shall  be  delayed 
until  it  receive  the  confirmation  of  the  pres- 
ident of  the  United  States  ;  or,  in  case  of 
the  trial  having  been  held  out  of  the  terri- 
torial limits  of  the  United  States,  until  it  re- 
ceive the  confirmation  of  the  commander  of 
the  fleet  or  squadron.  Here  is  evinced  the 
guarded  common  law,  anxiety  over  life. 
The  life  of  the  offender  can  not  be  taken, 
without  the  assent  of  two  thirds  of  a  legal 
tribunal ;  and  this  sentence  requires  for  its 
ratification  and  execution,  the  approbation 
of  the  highest  authority — the  president,  or 
the  commander  of  a  fleet  or  squadron,  if  the 
trial  take  place  abroad. 

The  naval  judiciary  and  code  is  built  up- 
on the  constitution  and  law,  enacted  by  con- 
gress in  pursuance  thereof. 

By  art.  35  of  the  act  of  1800  (the  only 
one  on  the  subject),  the  right  to  convene  a 
court  martial  is  exclusively  confided  to  the 
president  of  the  United  States,  the  secretary 
of  the  navy,  or  the  commander-in-chief  of 
the  fleet  or  squadron  in  foreign  service.  A 
commander  of  a  single  ship,  therefore,  what- 
ever may  be  the  number  or  rank  of  the  offi- 
32 


cers  under  him,  has  no  authority  to  order  a 
court-martial.  Congress  has  conferred  no 
such  right,  and  without  it,  he  might  just  as 
well  undertake  to  establish  a  district  court 
in  a  newly-discovered  country.  Its  sen- 
tences arid  judgments,  it  need  not  be  said, 
would  be  void  and  nugatory,  and  its  cre- 
ation an  offensive  and  ridiculous  preten- 
sion. 

By  the  act  of  1806  (approved  April  21)h 
it  is  provided,  that  "  the  public  armed  ves- 
sels of  the  United  States,  in  actual  service, 
in  time  of  peace,  shall  be  officered  and 
manned  as  the  president  of  the  United  States 
shall  direct." 

Here  then  is  the  power  of  the  president 
to  fit  out  and  despatch  vessels  of  war,  sin- 
gly, or  in  squadrons  or  fleets,  as  he  shall 
see  fit.  Whether  as  a  part  of  a  squadron  or 
fleet,  or  in  command  of  a  single  ship,  the 
duty  of  the  officer  is  the  same.  It  has  been 
seen  how  responsible  and  weighty  those 
duties  are  under  the  act  of  1800.  Was 
that  act  framed  under  the  idea  that  a  court 
martial  was  always  an  accessible  resort? 
Is  it  defective  in  not  foreseeing,  or  providing 
for,  the  contingency  of  crimes  occurring  in 
single  ships,  whose  immediate  trial  and 
punishment  was  necessary  ?  or,  perhaps  the 
better  opinion  is,  that  Congress  was  unwil- 
ling to  allow  a  court  to  be  composed  of 
those  aboard  such  ships,  and  meant  to  throw 
on  the  officers  of  a  single  ship,  a  more  than 
usually  serious  responsibility,  as  to  the  ex- 
ercise of  unusual  authority,  that  they  might 
know  that  they  exercised  it  at  their  peril, 
and  would  be  called  on  to  vindicate  it  by  a 
reasonable  necessity,  since  their  mistakes 
are  not  legitimatised  like  those  of  a  legally 
constituted  court,  as  will  be  shown  here- 
after. 

The  position  of  an  officer  so  circum- 
stanced, is,  in  extreme  cases,  one  of  great 
trial,  full  of  peril,  and  which  can  be  ade- 
quately and  justifiably  sustained  only  by  the 
exercise  of  the  greatest  caution,  prudence, 
and  firmness.  He  is  thrown  for  his  court 
and  code  on  necessity,  the  last  power  which 
the  law  authorizes.  He  may  have  been 
separated  from  his  consorts  by  stress  of 
weather,  or  cruising  orders  ;  no  matter  how 
innocently  he  is  removed  from  the  resource 
of  a  court,  he  can  not  become  a  judge  to 
try  or  execute  an  unallowed  sentence,  with- 
out taking  on  himself  the  risk  of  establish- 
ing the  guilt  of  the  criminal  by  legal  evi* 


250 


PROCEEDINGS   OF  THE 


dence,  and  of  vindicating  his  usurpation  of 
authority  by  the  fact  of  a  reasonable  neces- 
sity. He  is  in  a  predicament  requiring  all 
the  circumspection  the  exigency  will  allow 
a  man  of  reasonable  firmness,  sagacity,  and 
caution.  If  the  emergency  be  sudden  and 
unexpected,  the  allowance  for  errors  on  his 
part  must  be  proportionate.  Prudence  re- 
quires thought,  and  thought  requires  time. 
An  onset  is  one  thing  ;  an  affair  covering 
months,  weeks,  or  days,  is  another.  The 
excuse  for  imprudence  must  be  sealed  by 
the  opportunity  of  being  right.  I  have  thus 
generally  reviewed  the  heinousness  of  the 
crime,  and  the  rights  and  duties  of  an  offi- 
cer in  the  delicate  predicament  of  being 
under  no  code  and  shield,  but  that  of  neces- 
sity. Let  me  now,  in  the  same  spirit,  turn 
to  others,  not  unimportant  actors. 

We  now  approach  the  subjects  and  suf- 
ferers under  the  law  of  necessity :  those 
who  may  have  to  undergo  death — those  who 
have  been  subjected  to  that  extremes!  pen- 
alty. 

The  fountain  of  the  spirit  with  which  we 
are  to  approach  them,  is  in  the  statute,  fed 
from  the  constitution.  The  subordinates  of 
a  vessel  of  war,  are  not  the  serfs  of  an  irre- 
sponsible power.  They  are  shielded  by 
guarantied  privileges  ;  guilt  is  not  to  be 
branded  on  them  by  imputation.  The  law 
of  evidence,  the  forms  of  trial,  tbe  essential 
requisites  for  a  lawful  sentence — these  have 
no  flexible  adaptation  to  rank ;  each  and  all 
are  creatures  of  the  Most  High,  and  guard- 
ed in  the  equalizing  moments  of  accusation 
and  trial  with  indiscriminating  equity.  All 
this  is  in  the  law  ;  and  the  frequent  reading 
of  the  law  in  the  hearing  of  every  agent  in 
the  service,  is  enjoined.  It  tells  of  a  le- 
gally constituted  court,  of  the  right  of  chal- 
lenging the  judges,  of  examination  and  con- 
frontment  of  witnesses,  of  the  vote  of  two 
thirds  in  capital  cases,  of  the  necessity  of  a 
death  sentence  being  confirmed  by  the  pres- 
ident, or  the  commander  of  a  fleet  or  squad- 
ron, when  the  trial  is  abroad,  of  liberty  of 
pardon.  These  safeguards  are  covenants  in 
his  commission,  or  enlistment,  solemnly  en- 
tered into  by  the  government,  and  the  fulfil- 
ment of  which  is  required  by  the  constitu- 
tion. Christian  and  civilized  men,  every- 
where acknowledge  equivalent  immunities 
for  liberty  and  life.  Who  has  ever  wit- 
nessed a  single  trial,  without  being  forcibly 
impressed  with  the  value  of  each  cautionary 


provision.  A  single  question  may  unravel 
a  mystery,  expose  a  perjurer,  or  reduce  an 
imputed  crime  to  a  mere  error.  A  web 
of  interlaced  circumstances,  of  alarming  im- 
putation, may  be  shown  to  be  but  tbe  knit- 
ted shreds  of  suspicion,  or  artist-like  craft. 
Watch  the  priceless  value  one,  on  trial  for 
any  crime,  places  on  the  minutest  circum- 
stances of  evidence,  arid  how  justly  he  does 
it ;  and  none  can  gainsay  the  heart-moving 
appeals,  which  in  past  time  have  proved  the 
sources  of  such  recognised  rights  of  trial. 
The  law  utters  aloud  the  voices  of  myriads 
in  seasons  of  peril,  attesting  the  essential 
worth  of  those  forms  and  opportunities  of 
exercising  sacred  and  inalienable  rights  ;  and 
she  binds  her  servants  to  obey  them  by  the 
most  solemn  obligations.  "  Enter  any  vessel," 
she  says,  "  arid  these  are  your  privileges ; 
more,  the  testimony  against  you  shall  be 
fairly  recorded,  you  shall  have  counsel,  you 
shall  write  your  defence  and  annex  it  to  the 
record  ;  in  capital  cases  your  sentence  shall 
await  a  high,  and  probably  a  delayed  ratifi- 
cation ;  the  confirmatory  power  is  a  further 
resource  for  revision,  or  mercy — an  added 
security  against  injustice,  or  erroneous  judg- 
ment." 

Such  are  the  stipulated  protective  sanc- 
tions by  which  the  law  invites  to  the  ser- 
vice of  the  nation,  and  assures  those  who 
have  engaged  in  it,  of  security  against 
hasty,  unjust,  or  capricious  judgment.  But 
to  their  formal  recognition  and  enjoyment, 
the  composite  materials  of  a  legal  court 
must  be  present. 

The  next  question  is — are  these  super- 
seded when  attachment  to  a  single  ship 
precludes  the  possibility  of  judicial  organi- 
zation ?  Does  the  subordinate  become  out- 
lawed by  the  exercise  of  the  president's 
discretion  in  not  annexing  him  to  a  squad- 
ron or  a  fleet  ?  Is  he  thus  stripped  of  his 
privileges  ?  Is  the  superior  power  fur- 
nished by  that  circumstance,  with  that  un- 
erring sagacity  which  dispenses  with  all 
the  treasured  securities  of  liberty,  character, 
and  life  ?  The  answer  is  obvious.  What 
is  to  be  done  ?  Crime  is  not  to  be  licensed 
for  want  of  a  constitutional  judicial  tribunal. 
This  is  no  new  question.  Countless  in- 
stances have  ripened  the  relative  rights  and 
duties  of  the  parties  into  a  settled  maxim  of 
law.  The  superior  must  execute  his  duty, 
by  the  law  of  necessity,  with  the  caution 
and  justice  of  a  man  possessed  of  ordinary 


NAVAL  COURT  MARTIAL. 


251 


firmness,  prudence,  and  sagacity.  The  pos- 
itive law,  when  applicable,  teaches  him  how 
to  apply  the  law  of  necessity.  It  discovers 
what  the  law  deems  rights,  and  the  neces- 
sity known  to  the  law  is  a  sparing  hand, 
conferring  power  with  a  grudging  reluc- 
tance, in  dispensing  with  a  usual  and  ordi- 
nary privilege.  The  superior  is  told,  "You 
see  before  you  as  in  a  directory-chart,  the 
covenants  of  the  law  in  behalf  of  all  her 
servants,  when  a  judicial  tribunal  is  appli- 
cable. They  are  not  the  useless  forms  of  a 
scrivener.  They  are  such  inestimable  rights 
as  you  yourself  will  claim  and  receive,  when 
you  come  to  vindicate  the  exercise  of  your 
awful  discretionary  power.  Look  at  those 
of  whom  you  are  becoming  the  judge  by  the 
unwilling  and  last  appointment  of  the  law 
of  necessity,  and  carefully  see  that  you  re- 
trench as  little,  as  little  as  possible,  of  that 
inviolate  contract  which  the  exigency  of  the 
moment  will  not  allow  to  be  literally  ful- 
filled. You  are  called — it  is  your  privilege 
to  execute  your  duty — you  must  execute  it ; 
but  see  that  you  do  it  in  the  spirit  of  the 
law,  annulling  the  least  possible  portion  of 
stipulated  engagements.  No  court  can  be 
held  but  in  the  bosom  of  your  discretion. 
The  law  compels  you  to  make  it  a  court  of 
justice — the  shelter  and  sanctuary  of  her 
children,  without  the  covert  of  her  usual 
dome,  indeed,  but  still  within  the  hallowed 
precincts  of  her  temple."  Such  are  the  gen- 
eral principles  as  to  the  duties  of  an  officer 
of  a  public  armed  ship,  and  of  the  rights  of 
an  imputed  culprit  under  his  command. 

I  shall  now  detail  the  specific  proposi- 
tions, under  those  general  principles  which 
I  regard  as  applicable  to  the  case. 

First — as  to  the  crime.  Mutiny  is  trea- 
son at  sea,  and  is  the  intent  or  act  to  super- 
sede lawful  authority,  or  resist  it,  or  bring  it 
into  contempt,  so  that  the  power  of  com- 
mand is  likely  or  intended  to  be  endan- 
gered (a). 

Intent  is  the  essence  of  every  crime, 
where  the  law  does  not  infer  the  intent  from 
the  act  itself.  A  mutinous  speech  or  ex- 
pression once  established,  the  duty  of  ex- 
culpation rests  on  him  who  made  it.  But 
this  is  assuming  that  it  has  been  proved 
that  it  was  made  with  a  real  and  serious 
design.  If  it  could  be  proved  that  a  propo- 
sition in  terms  mutinous,  was  a  premedi- 

(a)  Hough  on  Courts  Martial,  68  ;  United  States 
vs.  Sharp,  1,  Peters's  C.  C.  R.,  122. 


tated  jest  or  amusement,  no  one  would  con- 
tend that  the  crime  was  established,  though 
believed  by  its  hearer.  The  attendant  evi- 
dence, therefore,  must  ascertain  the  motive 
of  the  speaker.  If  that  shows  him  the  au- 
thor or  utterer  of  a  serious  proposal  for  re- 
volt, the  criminality  is  complete,  and  in  a 
court  of  justice,  legally  constituted,  his  con- 
viction would  be  imperative,  however  the 
circumstances  of  the  person  or  the  imprac- 
ticability of  the  scheme  might  induce,  from 
the  commuting  or  pardoning  power,  allevia- 
tion of  punishment,  because  the  law  admin- 
isters its  penalties  with  rigid  severity  only 
to  guard  against  real  dangers. 

Second — as  to  the  alleged  criminals. 
This  is  their  trial,  their  first  and  only  trial. 
They  are  elevated  to  the  rank  of  presumed 
innocence  till  the  contrary  be  established. 
The  dead  stand  before  you,  impleaded  in  a 
court  of  law.  "It  is  not  here  that  the  sleep- 
ing and  the  dead  are  but  as  pictures."  You 
are  not  revising,  as  an  appellate  court,  the 
trial  and  sentence  of  an  inferior  lawful  ju- 
diciary. The  judge  was  self-constituted 
under  the  law  of  necessity  ;  he  has  no 
commission  to  secure  him  against  the  con- 
sequences of  mistakes.  The  errors  of  a 
legal  court  are  privileged  j  those  of  usurped 
authority  are  punishable.  The  jurisdiction 
of  necessity  is  always  exercised  at  the  haz- 
ard of  its  administrator.  To  invalidate  his 
decisions,  he  must  show  by  legal  evidence 
the  guilt  and  degree  of  criminality  of  each 
and  all  who  suffered  by  his  sentence,  when 
he  himself  accounts  for  the  assumption  of 
power. 

In  this  case,  in  the  sense  of  the  law,  the 
dead  have  never  been  tried  till  now  before 
this  judicature.  The  consequences  of  a 
legally  established  criminality  have  been 
visited  upon  them  ;  but  there  was  no  sen- 
tence, no  trial,  no  judge  known  to  the  law. 
A  judge  is  never  indicted  for  his  sentences. 
He  may  be  impeached  for  corruption,  or 
ignorance,  or  misbehavior  ;  but,  except  in 
the  theoretical  case  of  express  malice  per- 
verting the  law,  he  is  never  put  on  trial  in  an 
ordinary  court  of  law  for  his  judgments  (b). 
I  am  assuming  that  he  has  jurisdiction  to 
try  the  offence ;  for  though  he  may  pass 
under  the  name  of  a  judge,  if  he  have  no 
authority  in  the  particular  instance,  he  is  no 
more  one  for  that  case,  than  a  mere  private 

(6)  Hawkins's  P.  C.,  book  2,  ch.  22,  sec.  26  j 
1,  Hales's  P.  C.,  498. 


252 


PROCEEDINGS  OF  THE 


person  is  (c).  Here  all  are  on  trial  at  the 
same  time ;  and  you  are  not  to  strain  out 
the  guilt  of  the  dead  to  exonerate  the  living. 
Your  decree  of  their  innocency,  or  of  that 
of  any  one  of  them,  \vill  not  recall  life  ;  but 
their  characters  are  the  property  of  others, 
and  their  memory  is  invested  with  every 
privilege  which,  living,  they  themselves 
would  have  enjoyed. 

This  sanctity  of  the  rights  of  the  dead  is 
no  abstraction  of  law,  but  is  a  great  cau- 
tionary principle  of  protection  for  the  living. 
It  inculcates  the  value  of  life,  and  becomes 
an  awful  admonition  to  those  who  venture 
to  terminate  the  existence  of  any  of  their 
fellow-men.  It  is  thus  a  great  safeguard, 
which  the  law  will  not  remit,  in  behalf 
either  of  good  intentions  or  fair  judgment. 
If  any  innocent  man  suffers  by  an  authority 
not  having  a  legal  commission,  a  crime  is 
established,  no  matter  under  what  condition 
of  things  his  life  may  have  been  taken  ;  the 
reasonable  ground  may  absolve  from  pun- 
ishment at  the  discretion  of  the  pardoning 
power,  but  it  can  not  acquit.  For  this  rec- 
ognised distinction  between  the  mistakes 
of  those  who  have  and  those  who  have  not 
authority,  the  precedents  are  conclusive,  and 
of  the  most  approved  character. 

The  first  I  shall  cite,  in  the  case  of  Gen- 
eral Picton,  who  afterward  fell  at  Waterloo, 
reported  in  30th  Howell's  State  Trials — a 
case  much  considered,  having  extended  in 
its  elaborate  and  profound  argument  over 
the  period  between  1804  arid  1812.  He 
•was  the  governor  and  commander-in-chief 
of  the  island  of  Trinidad,  and  supposed  him- 
self entitled  to  officiate  as  judge,  and  apply 
the  Spanish  law  which  was  administered  in 
the  island  prior  to  its  conquest  by  Great 
Britain.  He  ordered  a  mulatto  woman,  on 
one  occasion,  to  be  tortured  in  pursuance  of 
his  judicial  sentence.  He  was  indicted  for 
this  in  England,  under  a  suitable  statute, 
and  was  prosecuted  with  unremitted  zeal, 
despite  his  intermediate  gallant  conduct, 
which  Lord  Wellington  has  portrayed  in 
the  following  extract  from  an  official  letter 
addressed  to  him  :  "  Whenever  the  history 
of  the  peninsular  war  shall  be  related,  your 
name  will  be  found  among  the  foremost  in 
that  race  of  glory ;  by  your  sword  the  Brit- 
ish troops  were  led  on  to  the  victorious 
assault  of  Ciudad  Rodrigo  ;  by  your  daring 

c)  Hawkins's  P.  C.,  book   1,  ch.  28,  sec.  5 
6. 


and 


hand  the  British  standard  was  planted  upon 
the  castle  of  Badajos." 

Several  points  of  pertinent  application  to 
the  present  case  arose  in  the  one  just  allu- 
ded to,  and  reference  shall  accordingly  be 
more  than  once  made  to  it  (on  page  489,  ep. 
cit.)  It  was  held  by  Lord  Ellenborough, 
whose  great  legal  character  the  distinguish- 
ed counsel  who  read  the  defence  of  the  ac- 
cused, sketched  with  such  truth  and  vigor. 
"  If  the  act  be  unlawful,  it  is  a  sufficient 
ground  of  conviction,  although  the  party 
may  have  erroneously  thought  he  had  a  rea- 
sonable and  probable  cause  for  committing 
it :  being  unlawful,  he  is  chargeable  for  it 
by  indictment."  "  To  assert  that  no  man  is 
to  be  considered  a  criminal,  because  he  has 
not  acted  intentionally  but  ignorantly,  would 
be  leaving  it  to  every  man  to  say,  '  I  will 
not  inform  myself,  and  in  consequence  of 
such  negligence  I  shall  not  be  deemed 
criminal.' 

"  The  subject  was  very  much  considered 
while  I  was  at  the  bar,"  the  learned  judge 
continues,  "  in  the  case  of  some  magistrates 
of  Cumberland,  where  it  was  held  certainly 
that  they  were  not  entitled  to  an  acquittal, 
alth6ugh  their  mistake  originated  in  the  best 
advice,  and  although  there  was  every  rea- 
son for  a  mitigation  of  their  punishment." 
These  doctrines  of  Lord  Ellenborough  are 
sanctioned  in  2d  Starkie  on  Evidence,  Tit. 
"  Malice,"  486  ;  and  again,  in  the  same 
case,  780,  Lord  Ellenborough  says :  "  I 
should  like  to  know  what  is  meant  by  a  de- 
fence to  an  unlawful  act :  if  you  mean  that 
that  which  is  charged  as  unlawful  may  be 
shown  not  to  be  so,  it  is  the  constant  prac- 
tice, and  would  be  an  effectual  defence ;  but 
if  you  mean,  that  admitting  the  act  to  be 
unlawful  it  can  be  purged,  that  I  wish  you 
to  explain."  Again,  in  782,  the  same  judge 
and  Justice  Lawrence  say :  "  Is  that  case 
to  J)e  taken  as  authority  ?  can  Lord  Ken- 
yort  or  any  judge  ever  have  said  that  a  po- 
lice officer,  without  authority,  taking  an 
innocent  man  from  his  bed,  though  it  should 
appear  he  was  in  error,  shall  be  excused 
from  criminal  responsibility  ?  What  secu- 
rity would  the  subject  have  for  his  liberty 
if  that  could  be  law  ?  I  hope  there  is  no 
such  case  reported  ;  I  am  quite  sure  the 
learned  judge  could  never  have  so  held." 
This  is  not  a  judicial  error,  but  the  error  of 
a  common  police  officer."  Again,  in  783, 
he  says :  "  You  argue  to  the  extent  that 


NAVAL  COURT  MARTIAL. 


253 


every  person  acting  m  the  supposed  dis- 
charge of  a  public  duty,  if  he  act  illegally 
but  from  mere  error,  is  not  liable  to  be  in- 
dicted." Again,  in  689  :  "  Because,  if  he 
had  not  jurisdiction,  all  that  is  done  is  ille- 
gal ;  not,  however,  that  General  Picton 
would  be  liable  to  punishment  for  all  that  is 
done  wrong.  If  a  person  ignorantly,  and 
under  the  idea  that  he  has  the  power  and 
authority,  does  an  act  which  it  afterward 
appears  that  he  had  no  right  to  do,  it  would 
be  hard  to  carry  the  punishment  to  the  same 
extent  as  if  the  person  acted  with  a  crimi- 
nal intention  ;  but  that  will  be  matter  for 
the  consideration  of  the  court."  "  By  this 
last  remark,  Lord  Ellenborough  meant  that 
it  was  not  for  the  triers  of  the  fact,  the 
jury,  to  be  influenced  by  that  consideration, 
but  the  court,  in  affixing  the  amount  of 
penalty. 

Necessity  could  give  no  jurisdiction  over 
any  but  a  guilty  man.  If  the  innocence  of 
all  or  of  any  one  is  established,  authority 
to  that  extent  has  been  illegally  exercised, 
whatever  the  views,  intentions,  or  motives 
of  the  superior  at  (hat  time,  or  in  whatever 
good  advice  he  acted.  And  to  screen  the 
superior  from  this  technical  guilt  by  giving 
undue  weight  to  light  testimony  of  guilt,  is 
an  unauthorized  though  irresponsible  asper- 
sion of  the  dead,  which  a  fair  and  honora- 
ble court  like  this  will  never  commit.  If 
the  error  have  happened  bona  fide,  and  un- 
der reasonable  circumstances  of  excuse,  an 
emphatic  recommendation  to  mercy  would 
save  the  law  and  the  superior  at  the  same 
time.  But  if  Nelson,  Rodney,  Hull,  and 
Perry,  had  in  concert  deemed  it  necessary 
to  take  the  life  of  an  alleged  mutineer  under 
the  law  of  necessity — if  the  innocence  of 
the  victim  were  established  in  their  trial, 
the  verdict  must  need  be  against  them,  on 
the  principle  that  slander  of  the  dead  might 
not  be  added  to  the  deprivation  of  life, 
however  fairly  it  was  taken.  This  differ- 
ence between  judicial  and  extra-judicial 
mistakes  can  not  be  shaken,  and  this  is  put- 
ting the  mistake  on  the  most  favorable  foot- 
ing— on  the  footing  that  men  of  competen- 
cy, unusual  skill,  and  courage,  have  illegally 
put  to  death  an  innocent  man,  though  act- 
ing with  the  best  intentions.  These  doc- 
trines will  be  found  to  be  maintained  by 
Judge  Hopkinson  in  Gilpin's  reports,  32, 
case  of  Wilson  &  Richards  vs.  the  brig 


"Mary,"  and  in  1,  Russel  on  Crimes, 
458  (d). 

We  now  see  the  law  in  the  most  excusa- 
ble instances,  where  the  life  is  taken  of  an 
inculpable  person.  It  has  been  shown  that 
the  guilt  of  the  slain  must  be  made  out  by 
legal  evidence,  or  the  taker  of  the  life  is 
guilty  of  a  crime.  The  next  step  is  to  ascer- 
tain what  grade  of  crime  is  committed  by 
a  person  of  fair  judgment  and  honest  inten- 
tions and  competent  firmness  in  making  the 
inexcusable  mistake. 

His  crime  is  murder — why  ?  He  bore  no 
malevolence  to  the  dead  ;  he  acted  bonafdc, 
and  with  fair  judgment.  How  then  does 
the  act  come  under  the  denomination  of 
murder  ?  The  reason  is  that  from  the  ille- 
gality of  the  act  the  law  implies  malice. 
There  are  two  kinds  of  malice,  malice  in 
fact,  and  malice  in  law.  Express  malice  is 
ill  will  to  an  individual,  a  general  malignity 
of  nature  as  shown  by  the  barbarous  cir- 
cumstances of  the  act.  "  Malice  in  law  is 
a  mere  inference  of  law,  which  results  sim- 
ply from  a  wilful  transgression  of  the  law" 
(e).  Justice  Bullen  has  tersely  and  truly 
stated  the  distinction  :  "  Malice  in  its  com- 
mon acceptation  means  ill  will  against  a 
person  ;  but  in  its  legal  sense  it  means  a 
wrongful  act  done  intentionally  without  just 
cause  or  excuse"  (/). 

This  doctrine  was  struggled  against  with 
persevering  opposition  in  the  case  of  Gene- 
ral Picton.  It  was  agreed  that  he  knew 
not  the  party,  who  was  an  obscure  mulatto 
native ;  but  nothing  could  move  the  court 
from  the  legal  principle.  Lord  Ellenborough 
says  in  30,  Howell's  State  Trials,  488,  when 
these  considerations  were  pressed  upon 
him:  "  You  can  not  go  into  this — the  act, 
if  unlawful,  is  presumed  to  be  malicious." 
Again  :  "  In  an  action  for  a  malicious  prose- 
cution, the  topics  introduced  would  be  most 
material ;  but  here  they  have  not  the  most 
remote  application ;"  "  they  would  be  ma- 
terial in  a  malicious  prosecution  to  measure 
the  standard  of  damages."  "  The  question 
is,  was  the  act  authorized  by  the  law  of 

(d)  Moody'a  C.  C.  R.  334;   and  1,  Russel  on 
Crimes,  608  (Rex  vs.  Thomas). 

(e)  Bromage  vs.  Prosper,  4  Barn.  &  Cress. ,255. 
Justice  Story  cites  this  case  with  approbation,  and 
adds  :  "  Malice   is  wilfulness."   Dexter  vs.  Spear, 
4  Mason  C.  C.  R.  118. 

(/)  Starkie  on  Evi.,  2d  vol.,  Tit.  «  Malice,"  487. 


254 


PROCEEDINGS  OF  THE 


Spain  or  not ;  if  the  affirmative  is  estab- 
lished, the  defendant  must  be  acquitted." 
The  counsel  said:  "  It  is  admitted  on  all 
sides  that  there  was  no  ill  will  against  the 
prosecutrix."  Lord  Ellenborough  answers  : 
"  If  the  act  be  unlawful,  it  is  a  sufficient 
ground  for  conviction."  But  a  stronger  case 
by  far  is  now  offered  to  the  court,  of  late 
English  adjudication,  to  be  found  (g) :  "  So 
if  a  court  martial  order  a  man  to  be  flogged, 
when  they  have  no  jurisdiction,  and  the  j 
flogging  kills  the  man,  the  members  who 
concurred  in  that  order  are  guilty  of  mur- 
der." Why  ?  Because  the  act  was  illegal. 
Now,  can  an  instance  be  conceived  in 
which  less  personal  feeling  could  be  im- 
puted than  to  a  court  acting  under  oath,  and 
sincerely  thinking  they  had  power  to  try 
and  punish  ?  Russell  introduces  the  chap- 
ter by  stating :  "  Due  caution  should  be  ob- 
served by  all  persons  in  the  discharge  of 
their  respective  stations,  lest  they  proceed 
by  means  which  are  criminal  or  improper, 
and  exceed  the  limits  of  their  authority." 
The  case  of  a  sentinel  of  a  ship,  in  Sio'of 
same  volume — where  the  jury  found  that  he 
fired  under  the  mistaken  impression  that  it 
was  his  duty,  and  when  the  twelve  judges 
unanimously  held  him  guilty  of  murder,  is 
alike  impressive. 

It  is  thus  detailed  in  that  standard  work  : 
"  If  a  ship's  sentinel  shoot  a  man,  because 
he  persists  in  approaching  the  ship  when 
he  has  been  ordered  not  to  do  so,  it  will  be 
murder,  unless  such  an  act  was  necessary 
for  the  ship's  safety  ;  and  it  will  be  murder 
though  the  sentinel  had  orders  to  prevent 
the  approach  of  boats,  had  ammunition  given 
to  him  when  he  was  put  upon  guard,  and 
acted  under  a  mistaken  impression  that  it 
was  his  duty.  The  orders  to  him  from  the 
preceding  sentinel  were  to  keep  off  all 
boats,  unless  they  had  officers  with  uniforms 
on  them,  or  unless  the  officer  on  deck  al- 
lowed them  to  approach ;  and  he  received 
a  musket,  three  blank  cartridges,  and  three 
balls.  The  boats  pressed,  on  which  he 
called  repeatedly  to  them  to  keep  off;  but 
one  of  them  persisted  and  came  close  under 
the  ship,  and  he  then  fired  at  a  man  who 
was  in  the  boat  and  killed  him.  It  was 
put  to  the  jury  to  find  whether  the  sentinel 
did  not  fire  under  the  mistaken  impression 
that  it  was  his  duty,  and  they  found  that  he 
did.  But .  the  case  being  reserved,  the 

(g)  In  1,  Russel  on  Crimes,  Tit.  «  Murder,"  458. 


judges  were  unanimous  that  it  was  murder. 
They  thought  it,  however,  a  proper  case 
for  a  pardon  ;  and  further  they  were  of 
opinion,  that  if  the  act  had  been  necessary 
for  the  preservation  of  the  ship,  as  if  the 
deceased  had  been  stirring  up  a  mutiny,  the 
sentinel  would  have  been  justified." 

We  have  now  ascertained  the  principles 
of  the  law  as  to  the  fact  and  grade  of  crim- 
inality, where  the  life  of  an  innocent  person 
is  taken  by  people  of  the  best  judgment, 
under  the  best  advice,  and  most  excusable 
circumstances. 

The  deduction  is  irresistible,  that  the 
criminality  is  greater  if  life  has  been  taken 
without  due  caution,  without  adequate  firm- 
ness, and  without  reasonable  discretion,  and 
absolute  necessity.  So  far  the  case  has 
been  discussed,  as  though  the  sufferers  all, 
or  one,  were  innocent  of  the  legal  crime. 
Under  the  next  head  will  be  stated,  the 
standard  of  firmness,  discretion,  and  pru- 
dence, which  the  law  exacts,  and  of  neces- 
sity. 

The  next  head  is,  Suppose  you  believe 
the  sufferers  to  have  been  guilty  of  the 
criminal  charge — of  mutiny,  one  and  all, 
what  then  is  the  law  ?  Be  it  remembered 
that  it  is  not  guilt  that  gives  jurisdiction.  It 
must  be  guilt  and  necessity — the  last  neces- 
sity. In  the  case  of  the  man  who  was 
flogged  by  order  of  the  court  martial,  it  was 
not  his  guilt  or  innocence  that  affected  the 
question,  but  merely  the  right  to  administer 
the  correction  at  all.  You  may  believe  the 
parties  guilty,  but  had  they  survived  to  sup- 
ply their  explanations,  that  opinion  might 
be  removed ;  and  to  guard  this  inestimable 
privilege  of  life,  and  invest  it  with  every 
sanctity,  the  law  says  to  the  judge  under 
the  claim  of  necessity — "  It  is  not  sufficient 
for  you  to  make  out  a  case  of  prima  facie 
guilt,  when  you  have  tried  and  sentenced 
without  legal  authority,  you  must  do  more. 
You  must  establish  the  impossibility,  on  the 
part  of  a  man  of  reasonable  firmness  and 
prudence,  to  have  brought,  or  lodged  alive, 
those  you  executed,  where  they  might  have 
stood,  in  a  court  of  justice,  to  have  heard 
the  proof,  ask  questions,  and  supplied  ex- 
planations. This  is  a  duty  the  law  owes  to 
the  sanctity  of  their  lives,  and  which  it  has 
plighted  that  you  should  have  performed. 
Men  are  not  to  be  tried  by  acclamation. 
Even  the  guilty  are  to  be  condemned  by  le- 
gal tribunals,  where  they  may  plead  for 


NAVAL  COURT  MARTIAL. 


255 


pardon,  except  in  those  extreme  cases  where 
necessity  will  not  admit  of  the  delay  for  this 
constitutional  right.  Until  you  establish 
that  necessity,  you  jurisdiction  is  void,  even 
over  those  who  are  believed  to  be  guilty. 
But  one  side  is  heard,  as  to  innocence  or 
guilt ;  the  law  claims  the  right  for  both,  and 
that  right  shall  be  silenced  only  by  neces- 
sity, rightfully  applied  and  understood,  and 
not  by  the  seal  of  death  unnecessarily  af- 
fixed." 

The  act  of  putting  a  guilty  man  to  death 
without  necessity,  on  the  part  of  one  having 
no  legal  authority,  is  surely  an  illegal  act, 
much  worse  than  the  flogging  of  a  man  by 
order  of  a  court  martial,  supposing  itself  to 
have  authority,  but  which,  in  fact,  had  no 
jurisdiction.  We  have  seen  that  such  an 
excess  of  power  is  murder,  when  death  re- 
sults. 

The  standard  is  now  to  be  ascertained,  by 
which  to  estimate  the  degree  of  danger 
which  will  authorize  the  taking  away  of  the 
life  of  even  a  guilty  person,  On  the  part  of 
one  without  legal  judicial  powers.  In  the 
usual  and  ordinary  cases — in  private  life  on 
land,  or  the  merchant  service  at  sea — it  must 
be  an  immediate  danger  of  life,  such  as 
would  be  so  deemed  by  a  man  of  ordinary 
firmness,  prudence,  and  sagacity.  The  dan- 
ger must  be  clear  and  impending,  and  the 
fatal  resort  must  be  the  last  reasonable  re- 
source. People  may  have  looser  notions 
of  the  value  of  life,  but  I  am  stating  its 
value  in  the  eye  of  the  law. 

Russel  on  crimes  (citing  1  Lord  Hale's 
P.  C.  484),  1  vol.  549,  says  :  "  It  seems, 
therefore,  that  the  intent  to  murder,  or  com- 
mit other  felonies  attended  with  force  or 
surprise,  should  be  apparent,  and  not  left  in 
doubt ;  so  that  if  A  make  an  assault  on  B, 
it  must  plainly  appear,  by  the  circumstances 
of  the  case  (as  the  manner  of  the  assault, 
the  weapon,  &c.),  that  the  life  of  B  is  in 
imminent  danger  ;  otherwise  his  killing  the 
assailant  will  not  be  justifiable  self-defence." 
Such  is  the  law  in  cases  of  an  attack,  and 
heat  of  blood. 

In  the  time  of  the  insurrection  in  Penn- 
sylvania, on  the  trial  of  one  of  the  insur- 
gents, it  was  sought  to  be  established  that 
he  was  compelled  by  fear  to  join  the  illegal 
combination.  Patterson,  justice,  in  expound- 
ing the  law,  says,  in  that  case  (IT.  S.  vs. 
~Vig.  2,  Dallas  346),  "  It  may  not  be  use- 
less on  this  occasion,  to  observe,  that  the 


fear  which  the  law  recognises  as  an  excuse 
for  the  perpetration  of  an  offence,  must  pro- 
ceed from  an  immediate  and  actual  danger, 
threatening  the  very  life  of  the  party.  The 
apprehension  of  any  loss  of  property,  by 
waste  or  fire,  or  even  an  apprehension  of  a 
slight  or  remote  injury  to  the  person,  fur- 
nishes no  excuse." 

The  same  doctrine  is  held  by  Judge 
Washington,  in  4-  Wash.  C.  C.  R.  406. 

In  relation  to  the  merchant  service,  Judge 
Hopkinson,  in  Gilpin's  U.  S.  C.  C.  R.  32, 
uses  the  following  strong  observations,  re- 
specting the  master  of  a  vessel  who  had 
lodged  a  refractory  seaman  in  a  foreign  jail  : 
"  The  practice  of  imprisoning  disobedient 
and  refractory  seamen  in  foreign  jails,  is 
one  of  doubtful  legality.  It  is  certainly  to 
be  justified  only  by  a  strong  case  of  neces- 
sity. It  is  not  among  the  ordinary  means 
of  discipline  put  in  the  hands  of  the  master. 
I  am  inclined  to  think  there  should  be  dan- 
ger in  keeping  the  offender  on  board,  or 
some  great  crime  committed,  when  this  ex- 
treme measure  is  resorted  to.  It  should  be 
used  as  one  of  safety,  rather  than  discipline, 
and  never  applied  as  a  punishment  for  past 
misconduct.  The  power  given  by  the  law 
to  the  master,  to  preserve  the  discipline  of 
the  ship,  and  compel  obedience  to  his  au- 
thority, are  so  strong  and  full,  that  they  can 
seldom  fail  of  their  effect ;  they  should  be 
clearly  insufficient,  before  we  allow  the  ex- 
ercise of  a  power  which  may  so  easily  be 
made  the  instrument  of  cruelty  and  oppres- 
sion, and  may  be  so  terrible  in  its  conse- 
quences." "  A  firm  and  judicious  exercise 
of  those  powers"  (the  usual  ones  of  a  mas- 
ter are  stated  by  the  judge),  "  can  hardly 
fail  of  reducing  the  most  perverse  to  obe- 
dience." 

This  is  the  law  applied  to  a  merchant 
captain,  by  one  of  the  most  learned  judges 
that  has  ever  dignified  the  American  bench. 
Necessity  and  safety  arc  imposed  as  the 
reluctant  condition  by  which  a  mariner  shall 
be  subjected  to  the  tainted  atmosphere  of  a 
foreign  jail ;  and  the  justification  under  the 
advice  of  the  American  consul,  was  reject- 
ed as  wholly  unallowable.  What  would 
have  been  the  requirement,  if  in  that  case, 
in  lieu  of  imprisonment,  the  refractory  sea- 
man had  been  consigned  to  death,  rather 
than  incarcerate  him  in  the  dungeon  of  a 
friendly  power  ? 

There  is  a  distinction  between  the  mer- 


256 


PROCEEDINGS  OF  THE 


chant  service,  and  our  national  marine.  In 
the  latter,  the  duty  of  maintaining  the  safety 
of  the  vessel  is  pitched  to  a  higher  key. 

The  exigency  need  only  be  such  as  clear- 
ly convinces  a  man  of  competent  judgment 
and  firmness,  that  this  dreadful  alternative 
of  taking  life  is  his  last  resource,  to  keep 
authority  and  the  control  of  his  ship.  In 
this  case  the  distinction  is  unimportant,  for 
it  is  not  pretended  on  either  side  that  there 
was  any  intent  to  spare  life  and  merely 
usurp  command,  if  there  were  a  real  and 
matured,  and  impending  project  to  mutiny 
at  all.  This  is  the  theoretical  discrimina- 
tion on  one  side.  There  are  practical  ones 
on  the  other.  The  physical  and  artificial 
resources  of  a  national  commander  far  ex- 
ceed those  of  a  master  of  a  merchant  ves- 
sel, with  a  slender  and  rabble  crew,  often 
supplied  with  subordinate  officers  who  have 
been  carelessly  selected  by  ship-owners, 
and  unknown  as  to  their  skill,  and  disposi- 
tion toward  the  master.  Lighter  circum- 
stances might  justify  the  apprehensions  and 
desperate  resolutions  of  one  thus  placed  in 
charge  of  his  own  life,  and  of  a  valuable 
cargo. 

I  can  find  no  warrant  in  the  law  for  the 
doctrine  that  this  enjoined  frugality  of  blood 
— this  awful  sanctity  of  life,  is  discharged 
by  any  considerations  of  mere  professional 
pride,  which  has  been  intimated  in  the  de- 
fence. If  the  attache  of  a  national  ambas- 
sador abroad  assail  the  life  of  the  latter,  he 
has  the  humility  to  incarcerate  him  there,  if 
he  be  unable  to  transfer  the  assailant  to 
his  own  country  for  trial ;  if,  while  on  tran- 
sit in  a  public  armed  vessel  to  a  foreign 
court,  such  an  inferior  were  to  endanger 
him  in  any  form,  the  ambassador  would 
never  think  of  becoming  the  judge,  but  with- 
out any  fancied  derogation  of  his  dignity, 
would  remit  the  offender  in  irons  to  his  own 
country  for  trial,  or  secure  him  (in  case  no 
opportunity  immediately  presented),  in  a 
foreign  jail,  till  a  suitable  conveyance  of- 
fered. 

In  what  part  of  the  constitution,  or  laws 
enacted  under  it,  is  the  gross  pretension  of 
naval  exemption  from  the  general  dictate 
of  the  law  as  to  the  fearful  hazard  of  be- 
coming a  death  sentencer,  set  forth  ?  The 
law  of  necessity  has  no  such  elastic  adapt- 
ation to  the  imaginary  dignity  of  any  corps, 
however  serviceable  and  honorable  to  the 
country.  The  president  of  the  United  States 


would  fall  beneath  the  inexorable  justice  of 
impeachment,  and  the  law  of  murder,  if, 
acting  as  commander-in-chief  of  the  land 
forces,  and  while  at  their  head  in  Canada, 
having  the  grant  of  a  peaceful  transit  through 
any  portion  of  that  country,  he  should  dare  to 
execute,  without  trial,  a  culprit  who  might  be 
imprisoned  in  the  dungeon  of  the  friendly  for- 
eign power,  to  be  forwarded  in  due  season  to 
competent  tribunal.  Arms  and  public  ships 
are  the  creatures  of  the  law,  and  meant  to 
sustain,  and  not  to  overstretch  it.  In  no 
portion  of  the  nautical  population  is  the  law 
so  systematically  inculcated,  as  in  that  of 
the  national  marine.  Its  officers  are  sworn 
to  sustain  the  constitution ;  one  of  the  pro- 
visions of  which  is,  "  that  cruel  and  unusual 
punishment  shall  not  be  inflicted,"  and  if 
death,  on  the  sentence  of  an  unauthorized 
judge,  be  not  such,  when  it  is  practicable 
by  immurement  for  a  season  in  a  foreign 
jail  to  attain  a  rightful  tribunal,  it  would  be 
difficult  to  imagine  what  was — more  espe- 
cially when  another  amendment  of  the  con- 
stitution provides,  that  no  one  "  shall  be 
deprived  of  life,  liberty,  or  property,  without 
due  process  of  law."  The  flag  of  the  navy 
a  higher  power  than  that  of  the  constitu- 
tion !  ! !  That  flag  had  better  be  lowered 
for  ever,  than  permitted  to  float  from  so  lofty 
a  peak ! 

There  is  no  board  of  naval  officers  whose 
warm  patriotism  would  not  scout  any  such 
treasonable  and  vain-glorious  pretensions. 
The  execution  of  any  such  claim  of  power 
would  be  practical  treason,  however  little 
any  such  inimical  design  was  cherished  in 
the  hearts  of  those  who  sought  to  maintain 
it.  It  is  the  delusion  of  pride,  without  an- 
alysis and  reflection  of  the  consequences  its 
indulgence  would  involve. 

No  defence  could  rest  on  that  baseless 
foundation.  Submission  to  the  law  is  the 
pride  of  a  patriotic  military.  It  is  that  spir- 
it which  induced  the  constitution  to  allow 
it  the  judicial  cognizance  of  the  crimes  of 
their  own  body,  in  pursuance  of  the  legis- 
lative action  of  congress.  The  trust  has 
been  so  far  justified,  and  will  remain,  while 
the  trustees  act  as  administrators  of  the  law, 
and  not  as  legislators  of  mere  offensive  and 
cruel  pretensions. 

The  notion,  therefore,  that  a  naval  com- 
mander is  not  under  the  same  restrictions, 
as  to  the  law  of  necessity,  as  any  other 
commander  would  be,  is  utterly  groundless. 


NAVAL  COURT  MARTIAL. 


257 


What  must  a  man  do,  when  his  life  is  as- 
sailed, before  he  is  permitted  in  self-de- 
fence to  take  that  of  another — that  of  his 
assailant  ?  "  The  party  assaulted  must, 
therefore,  flee  as  far  as  he  conveniently 
can,  either  by  reason  of  some  wall,  ditch, 
or  other  impediment;  or,  as  far  as  the  fierce- 
ness of  the  assault  will  permit  him  ;  for  it 
may  be  so  fierce,  as  not  to  allow  him  to 
yield  a  step  without  manifest  danger  of  his 
life,  or  great  bodily  harm,  and  then,  in  his  de- 
fence, he  may  kill  his  assailant  instantly,  (k) 
Again,  with  regard  to  the  nature  of  the  ne- 
cessity, it  may  be  observed,  that  the  party 
killing  can  not,  in  any  case,  substantiate  his 
excuse,  if  he  kill  his  adversary  even  after  a 
retreat,  unless  there  were  reasonable  ground 
to  apprehend  that  he  would  otherwise  have 
been  killed  himself."  (t)  This  doctrine  is 
tinged  with  the  humane  wisdom  of  Hale, 
whose  sanction  it  has  met. 

What  standard  does  it  exhibit  ?  Does  it 
not  say,  Resort  to  every  practicable  expe- 
dient, even  when  your  life  is  assailed  with 
violence,  to  avoid  the  shedding  of  blood  ? 
Does  it  not  furnish  unequivocally  the  duty 
to  steer  for  the  nearest  port,  if  the  expe- 
dient is  allowable  under  the  circumstances  ? 
It  is  too  plain  for  enforcement. 

In  estimating  the  necessity  of  any  com- 
mander's position,  all  the  attendant  circum- 
stances must  be  minutely  analyzed  and  sur- 
veyed. The  temper  and  disposition  of  those 
around  him  ;  the  period  of  time  ;  the  occupa- 
tion of  all  parties,  during  the  course  of  its  ef- 
flux ;  the  interruption,  or  regularity  of  usual 
duties  ;  the  behavior  of  the  crew  on  unusual 
occasions  ;  the  opportunities  of  molestation, 
used  or  unused  by  suspected  persons ;  the 
menacing,  or  quiet  deportment  of  the  pris- 
oners ;  the  means  of  confinement ;  the  cir- 
cumstances that  indicate  the  observance,  or 
"neglect  of  proper  circumspection  ;  the  con- 
sideration, or  neglect  of  usual  rights  ;  and 
the  reasons  on  which  either  might  depend. 
From  this  assortment  of  points  of  inquiry, 
and  such  others  as  more  detail  might  spe- 
cify, is  to  be  found  the  necessity,  and  the 
necessity  must  be  found,  such  as  will  jus- 
tify a  man  of  ordinary  firmness  and  pru- 
dence in  the  taking  of  life,  where  that  has 
been  done.  The  whole  transaction  is  to  be 
judged  with  a  reasonable  regard  to  the  frail- 

(fc)  iRussel  on  Crimes,  51 4  ;  1  Hale,  483. 
(i)  1  Russel  on  Crimes,  544 ;  1  Hawkins  P.C.  ch. 
29,  sec.  17. 

33 


ties  of  human  nature,  and  in  the  spirit  in 
which  a  conscientious  man  would  act,  to 
acquit  by  all  means,  if  that  spirit  will  allow 
him — to  convict,  if  it  so  direct  him. 

You  are  bound  to  weigh  this  matter  in  the 
temper  of  officers,  describing  the  discretion 
that  is  to  be  exercised  by  future  comman- 
ders, or  you  Jay  a  snare  of  peril  or  incul- 
cate precepts  of  precipitancy.  This  case 
is  to  be  hereafter  a  chart  of  power  and  duty, 
under  the  exigencies  of  necessity.  For  if 
it  is  justifiable,  by  that  rule  in  like  circum- 
stances, it  is  an  obligatory  rule  for  imitation. 

The  evidence  now  before  you  is  the 
means  you  must  employ.  It  is  a  question 
of  fact,  necessity,  or  no  necessity ;  not  wheth- 
er or  not  it  was  deemed  a  necessity,  when 
in  truth  it  was  not,  for  such  a  principle 
would  excuse  all  bad  judgment,  want  of 
firmness  and  discretion.  Such  considera- 
tions are  applicable  in  assessing  penalty,  or 
prompting  recommendation  to  mercy,  but 
they  can  not  vary  the  truth. 

It  is  hardly  necessary  to  say  that  you 
are  not  to  review  the  event  with  a  desire  to 
find  fault,  but  the  fault  must  be  pressed  on 
your  consideration  by  reasonable  construc- 
tion of  testimony  humanely  applied. 

If  the  law  which  this  paper  inculcates 
be  stern,  reprove  not  me,  but  Hale,  Hawkins, 
Foster,  Washington,  and  Story,  who  have 
commanded  its  statement.  It  has  their  seal, 
and  none  will  be  counterfeited  from  a  re- 
prehensible disposition  to  say  what  one 
would  rather  wish  than  what  is  true. 

With  your  hands  you  are  now  to  pre- 
scribe a  rule  of  duty  and  power.  You  are 
to  instruct  the  whole  naval  corps  what  is 
their  obligation  in  similar  circumstances. 
For  if  it  were  an  act  of  necessity  there 
could  be  no  choice  or  discretion,  and  when 
this  does  exist,  there  is  but  one  course 
which  is  legal  and  proper.  That  corps  are 
to  look  to  the  evidence  and  judgment  of 
this  case  to  ascertain  the  degree  and  indicia 
of  insubordination  which  are  to  direct  them 
to  take  life.  It  is  not  a  question  of  selec- 
tion of  measures,  when  one  may  have  made 
the  worst  choice,  and  yet  is  still  excusable. 
It  must  be  held  to  have  been  the  only  ex- 
pedient. If  more  delay  were  admissible 
and  could  have  been  indulged,  assuming  the 
victims  to  be  guilty,  the  right  of  power 
never  began,  nor  jurisdiction  commenced. 

Whatever  may  have  been  the  impres- 
sions and  motives  of  the  commander  at  the 


258 


PROCEEDINGS  OF  THE 


time  can  not  affect  the  question  of  fact,  as 
to  whether  the  necessity  did  in  truth  or  not 
exist.  Such  a  course  of  reasoning  would 
justify  the  killing  of  one  man  because  he 
was  mistaken  for  another.  These  considera- 
tions are  most  worthy  of  free  application  in 
the  estimate  of  his  character,  usually,  or  in 
the  apportionment  of  retribution  for  unautho- 
rized conduct ;  but  the  allowance  of  them 
as  justification  would  confer  privilege  on 
every  weakness,  error  of  judgment,  and  de- 
ficient sagacity,  which  a  man  of  good  feel- 
ing might  exhibit.  Nothing  but  bad  mo- 
tives could  be  punished.  On  land  careless- 
ness and  negligence,  of  the  best  and  purest 
men,  render  them  liable  for  manslaughter, 
if  death  ensues  from  their  heedlessness.  It 
is  not  only  ill-motive  the  law  punishes,  but 
illegal  action,  if  done  from  the  best  motives. 
If  the  executed  persons  were  innocent,  one 
or  all,  no  state  of  facts  or  intentions  at  the 
time  can  justify.  It  is  murder  to  have  taken 
his  or  their  life.  The  motives  are  indeed 
to  be  considered  for  punishment  or  pardon ; 
and  these  motives  are  to  be  gathered  from 
the  evidence.  If  guilty,  the  fact  of  neces- 
sity for  their  execution  at  the  time,  alone 
can  authorize  acquittal.  The  erroneous  im- 
pressions of  the  commander,  like  those  of 
the  court  martial  which  flogged  without  au- 
thority, and  of  the  sentinel  who  fired  under 
the  reasonable  but  mistaken  notion  that  it 
.was  his  duty,  admit  not  of  exoneration. 
The  law  will  permit  no  such  precedents  of 
justification,  for  fear  of  their  abuse  in  prac- 
tice. 

It  is  to  be  remembered,  that  it  is  the  evi- 
dence now  before  you  on  which  you  are  to 
pronounce  judgment  on  the  transaction.  It 
is  not  to  be  said,  "  It  is  true  the  evidence 
exhibits  a  very  different  state  of  facts  from 
what  was  thought  to  be  the  truth  at  the 
time,  but  this  is  not  the  criterion  ;  we  are 
to  see  what  was  believed  at  the  time." 
Such  a  standard  is  not  only  not  law,  but  is 
most  unjust,  because  of  its  partial  applica- 
tion. The  accused  is  allowed  to  assemble 
all  the  subsequent  evidence  he  can  adduce 
against  the  parties,  which  they  never  heard 
of,  to  manifest  their  guilt,  while  his  vin- 
dication on  the  standard  of  necessity  in 
his  favor,  is  only  to  be  inferred  by  the 
well-meaning  but  mistaken  conceptions  of 
fact,  as  to  their  criminality  or  indispensable- 
ness  of  their  execution,  which  were  enter- 
tained at  the  time  by  those  who  disposed 


of  their  fate.  Under  such  a  rule  an  honest 
man  could  never  be  convicted  of  a  respon- 
sible accountability. 

It  becomes  me  farther  to  say  to  you,  gen- 
tlemen, that  you  are  also  to  find  both  the 
motives  of  the  commander  and  his  judg- 
ment, as  applied  to  the  ascertaining  of  the 
point  of  necessity,  by  his  deportment  in  the 
whole  connexion  with  the  deceased  per- 
sons, and  especially  during  the  interval  be- 
tween the  26th  of  November  and  the  1st  of 
December.  If  you  find  reasonable  and  fair 
exertions  to  penetrate  the  reality  and  extent 
of  the  suspected  conspiracy — to  measure 
the  height  and  depth  of  the  emergency  with 
the  view  of  appropriating  a  reasonable  and 
circumspect  degree  of  power  for  its  con- 
trol— if  you  find  that  humane  and  consid- 
erate attention  to  human  rights  which  the 
crisis  would  allow  to  be  extended  to  the 
prisoners — if  you  find  the  requisite  reluc- 
tance to  retrench  as  little  of  the  opportuni- 
ties of  explanation  and  exculpation  which 
we  are  commanded  to  allow  those  beneath 
our  power — if  you  find  the  evidence  of  the 
transaction  manifesting  an  indispensable  ne- 
cessity for  a  resort  to  extreme  measures, 
slowly  and  unwillingly  adopted,  and  hu- 
manely applied — the  moral  culpability  of  the 
act  would  be  very  slight,  should  you  believe 
that  death  has  nevertheless  been  inflicted 
on  the  innocent,  or  been  imprudently  visited 
on  the  guilty.  If  you  find  the  contrary,  the 
deduction  is  obvious  as  respects  both  mo- 
tive and  judgment. 

It  should  be  written  down  in  capitals — 
that  if,  with  good  judgment  and  proper  mo- 
tives, Commander  Mackenzie  has  under  a 
reasonable  necessity  executed  real  muti- 
neers, not  only  is  he  entitled  to  an  acquittal, 
but  to  honorable  commendation.  His  ardu- 
ous trial  deserves  this,  as  the  least  an  hon- 
orable brotherhood  can  show  a  fellow  offi- 
cer for  a  manly  and  perilous  exercise  of  dis- 
cretion and  firmness  in  an  uncommon  junc- 
ture. The  country  ought  to  give  him  her 
laurels. 

It  may  be  proper  to  state,  that  in  my 
judgment  the  penalty  of  death,  in  Art.  21r 
is  not  mandatory  but  discretionary.  Not 
only  would  the  language  so  import — "  may 
be  punished  with  death,"  but  such  an  inter- 
pretation is  in  accordance  with  the  com- 
prehensive inclusion  of  the  technical  term 
"  murder."  We  are  apt  to  start  back  at  the 
word,  as  though  it  necessarily  imparted  some 


NAVAL  COURT  MARTIAL. 


259 


fiendish  malignity  of  crime,  or  bloody  exe- 
cution of  the  violence  of  ill-regulated  and 
cruel  temper.  It  does  comprise  all  such 
cases,  but  additionally  every  case  where, 
without  heat  of  passion,  life  is  designedly 
and  illegally  taken.  We  have  seen  the 
breadth  of  the  term  as  to  cases  of  motive  in 
the  precedents  of  the  illegal  flogging  by  the 
court  martial,  and  the  firing  of  the  sentinel 
under  the  mistaken  sense  of  duty. 

This  range  of  culpability  on  the  moral 
scale  has  been  recognised  in  the  legisla- 
tures of  most  of  the  states,  which  has  dis- 
tributed the  crime  into  several  degrees  and 
assessed  answerable  proportion  of  punish- 
ment. We  may  regard  congress  as  having, 
with  less  definite  views,  left  to  a  court  mar- 
tial in  each  case  the  duty  of  dividing  the 
technical  crime  into  degrees  by  allowing  it 
to  affix  such  a  sentence  as  the  merits  might 
suggest.  In  case  of  guilt,  you  are  at  lib- 
erty to  dispense  any  military  sanction  you 
please. 

I  will  close  this  paper  with  one  statement, 
as  of  record,  that  Wilson  was  not  called 
by  me  only  because  of  the  impatience  at 
what  was  called  protraction  of  the  proceed- 
ings, expressly  averred  by  the  accused  in 
court,  and  that  the  evidence  might  not  be 
unnecessarily  cumulative.  I  never  saw  the 


man,  nor  talked  with  him  ;  I  had  a  sketch 
given  me  of  what  he  stated  he  could  prove, 
and  I  saw  nothing  in  it  that  would  not  have 
aggravated  the  case  of  the  prosecution ;  that 
sketch  is  at  anybody's  service,  just  as  I 
offered  to  the  accused  and  his  counsel  my 
memoranda  of  my  single  examination  of 
M'Kinley.  Did  not  the  judge  advocate 
offer  on  the  record  to  call  any  unexamined 
persons  whom  the  accused  would  say  could 
prove  either  a  mutiny  or  a  proposal  of  res- 
cue after  the  arrest  ? 

Gentlemen,  I  now  dismiss  this  case  from 
any  interference  of  my  judgment.  Is  there 
one  of  you  that  can  contest  the  accuracy  of 
Kennedy,  the  best  writer  on  courts  mar- 
tial, as  to  the  hateful  labor  of  a  judge  advo- 
cate ?  "  But  it  may  be  observed,"  says  this 
able  writer,  "  that  he  is  bound  to  prosecute 
all  offenders,  and  that  no  one  ought  to  un- 
dertake the  stern  duties  of  a  public  prose- 
cutor, unless  he  is  prepared  to  repress  every 
dictate  of  compassion,  and  every  feeling  that 
might  mislead,  and  to  contemn  every  reproach 
except  that  of  his  own  conscience." 

Since  writing  the  above,  Wilson  called  on 
me  to  attest  the  days  of  his  attendance.  This 
was  on  March  25th. 

WILLIAM  H.  NORRIS, 

Judge  Advocate. 


REVIEW 


OF   THE 


PROCEEDINGS   OF   THE   NAVAL   COURT  MARTIAL, 

. 


REVIEW 


OP   THE 


PROCEEDINGS   OF   THE   NAVAL   COURT   MARTIAL. 


ON  the  14th  of  December,  1842,  the  United  States  brig  Somers,  Commander 
Mackenzie,  arrived  at  New  York,  from  a  cruise  to  the  coast  of  Africa.  The 
vessel  came  up  to  the  navy-yard,  where  she  anchored,  holding  very  little  com- 
munication with  the  shore.  One  of  her  officers  proceeded  forthwith  to  Washing- 
ton, with  despatches ;  and,  for  a  day  or  two,  a  species  of  mystery  was  observable 
in  and  about  the  vessel.  Rurnor,  however,  soon  began  to  deal  with  the  cause  of 
this  unusual  privacy,  and  it  was  not  long  ere  the  truth,  in  its  outlines  at  least,  got 
before  the  nation. 

It  appeared  that  a  midshipman,  the  acting  boatswain  (a  rated  boatswain's  mate), 
and  a  seaman,  had  been  hanged  at  sea,  under  a  charge  of  mutiny,  by  the  orders 
of  Captain  Mackenzie,  supported  by  a  written  opinion  of  most  of  his  officers. 
There  had  been  no  trial,  scarcely  an  accusation,  as  respected  one  of  the  men  ex- 
ecuted, and  what  was  the  most  extraordinary  of  all,  no  overt  act  of  mutiny. 
The  following  would  seem  to  be  the  leading  facts  of  this  grave  and  unusual  oc- 
currence. 

On  board  the  Somers  was  a  midshipman,  named  Philip  Spencer,  a  youth  then 
in  his  nineteenth  year.  This  young  gentleman  was  the  son  of  the  secretary  of 
war,  and  the  grandson  of  one  of  the  most  distinguished  jurists  New  York  has  ever 
produced.  Midshipman  Spencer,  it  was  affirmed,  had  induced  a  person  of  the 
name  of  Wales,  who  was  purser's  steward  of  the  brig,  or  what  is  called  a  forward 
officer,  to  mount  on  the  booms  with  him,  where  the  parties  by  using  a  little  pre- 
caution would  be  out  of  ear-shot,  and  where  the  former  abruptly  opened  a  dis- 
course by  relating  to  the  latter  his  whole  scheme,  first  demanding  an  oath  of 
secrecy.  Agreeably  to  the  subsequent  evidence  of  Mr.  Wales,  Spencer  intended 
to  get  possession  of  the  brig,  by  a  rising  in  the  night,  throwing  the  officer  of  the 
watch  overboard, murdering  all  the  remainder  in  their  berths,  or  hammocks,  and 
awing  the  uninitiated  of  the  crew  into  submission  by  pointing  the  quarter-deck 
guns  forward,  and  by  other  similar  means  of  authority,  or  intimidation.  Once  in 
possession,  Mr.  Spencer  intended  to  turn  pirate,  robbing  the  defenceless,  ravishing 
the  females,  and  murdering  the  men  he  might  overcome. 


264.  REVIEW  OF  THE  PROCEEDINGS 

Wales  affirms  that  Spencer  mentioned  he  had  about  twenty  of  the  crew  enlisted 
in  this  enterprise.  The  conversation  took  place  on  the  evening  of  the  25th  of 
November,  the  brig  then  being  on  her  passage  from  the  coast  of  Africa  to  the 
island  of  St.  Thomas,  Captain  Mackenzie  intending  to  go  into  the  latter  in  quest 
of  supplies,  §nd  out  of  regard  to  the  health  of  his  crew.  (See  record,  p.  194,  top 
of  second  column.) 

The  following  morning,  the  conversation  of  Wales  with  Mr.  Spencer  was  com- 
municated to  the  first  lieutenant,  by  whom  it  was  laid  before  Captain  Mackenzie. 
Mr.  Spencer  was  arrested  at  quarters  the  same  afternoon  ;  he  was  immediately 
ironed  and  placed  on  one  of  the  arm-chests,  under  the  eye  of  the  officer  of  the 
watch,  there  being  but  one  marine  in  the  brig,  a  sergeant,  who  acted  as  master-at- 
arms.  This  arrest  occurred  on  the  evening  of  the  26th  November. 

On  the  27th,  the  main-royal-mast  was  carried  away.  In  consequence  of 
circumstances,  which  will  appear  in  their  place,  Captain  Mackenzie  was  induced 
to  suppose  that  this  mast  was  carried  away  by  the  connivance  and  acts  of  the  mu- 
tineers with  the  hope  of  getting  possession  of  the  vessel  in  the  confusion  ;  and, 
imagining  that  he  detected  symptoms  of  plotting  among  certain  of  the  crew  that  were 
aloft,  busied  in  repairing  damages,  he  arrested  the  boatswain's  mate,  whose  name  was 
Cromwell,  and  the  seaman  Small.  These  two  men  were  also  ironed,  and  placed  on 
the  quarter-deck.  The  signs  of  disaffection  increasing,  according  to  the  views 
of  Captain  Mackenzie  and  some  of  his  officers,  four  more  of  the  crew,  M'Kee, 
M'Kinley,  Wilson,  and  Green,  were  placed  in  irons  on  the  30th,  and  put  on  the 
quarter-deck.  These  last  arrests  were  pointed  out  by  certain  papers  that  were 
found  in  Mr.  Spencer's  razor-case,  and  to  which  he  is  said  to  have  alluded  in  his 
communications  to  Wales,  and  by  other  circumstances  that  will  appear  as  we 
proceed. 

Captain  Mackenzie  now  hesitated  about  arresting  any  more  of  the  supposed 
mutineers  ;  but  imagining  that  he  still  detected  proofs  of  an  intention  to  rise  among 
the  portion  of  the  crew  that  was  at  large,  he  began  to  mature  a  scheme,  previously 
entertained,  of  executing  some  of  the  prisoners,  in  order  to  ensure  the  safety  of 
the  brig.  The  matter  was  formally  referred  to  the  officers,  having  however  been 
for  some  time  before  discussed  among  some  of  them  at  least,  one  or  two  of  the 
younger  midshipmen  excepted  ;  and  fortified  by  their  approval  of  the  step,  Mr. 
Spencer,  Cromwell,  and  Small,  were  hanged  at  the  yard-arms  on  the  1st  of  De- 
cember. From  the  moment  of  the  executions,  no  further  evidence  of  danger  was 
seen,  or  imagined,  the  vessel  arriving  first  at  St.  Thomas,  and  subsequently  at 
New  York,  in  due  season. 

Such  is  an  outline  of  these  memorable  facts.  The  details  we  reserve  for  the 
comments  which  will  follow.  The  reader  will  at  once  understand  that  there  was 
no  regular  trial,  but  that  the  executions  took  place  without  any  of  the  forms  that 
are  usually  observed  in  cases  of  legal  investigations.  Oaths  were  administered 
to  a  few  of  the  crew,  who  were  examined  or  consulted  by  the  council  of  officers, 
but  the  prisoners  were  not  arraigned,  nor  was  either  privy  to  the  proceedings  that 
were  going  on. 

The  facts  were  revealed  to  the  public  through  the  ordinary  channel  of  the  news- 
papers. The  first  accounts  were  exaggerated  and  false,  sustaining  Captain  Mac- 
kenzie's course  in  terms  so  extravagant  as  to  betray  the  temper  in  which  they « 
were  written,  and  to  demonstrate  that  the  object  was  to  vindicate  the  act,  rather 
than  the  justice  of  the  country.  Inquiry  slowly  brought  the  leading  circumstan- 
ces before  the  nation,  differing  in  many  essentials  from  the  original  statements, 


OF  THE  NAVAL  COURT  MARTIAL.  265 

though  the  journals  that  had  blindly  plunged  into  the  subject  found  no  difficulty 
in  maintaining  their  first  opinions,  under  every  state  of  the  facts.  Their  object 
was  obviously  to  support  one  side  of  the  question,  let  the  truth  lie  where  it  mi«-ht. 
The  moving  causes  were  political  animosity,  mercantile  cupidity,  and  personal 
interests.  That  the  cause  was  not  a  desire  to  support  truth  is  self-evident,  as 
men  who  merely  wished  this,  would  not  have  involved  themselves  in  the  dilemma 
of  being  obliged  to  maintain  conflicting  propositions. 

The  political  malignancy  which  has  been  displayed  in  this  transaction,  in  one 
journal  at  least,  may  justly  be  likened  to  that  of  the  spirits  of  darkness.  The 
world  has  probably  never  witnessed  its  parallel  in  a  country  pretending  to  civili- 
zation;  demoniacal  passions  having  been  exhibited  in  a  nakedness  of  deformity 
that  is  unusual  even  in  our  own  greatly  degraded  press,  unrelieved  by  argument, 
ingenuity,  or  decency  of  language.  In  the  case  of  the  particular  press  mentioned, 
the  course  taken  defeated  itself— a  general  feeling  of  indignation  pervading  the 
country,  on  the  subject  of  its  inhuman  coarseness,  its  vulgarity,  and  its  malig- 
nancy. But  other  presses  were  evidently  influenced  by  the  same  motive,  though 
conducted  with  greater  ability  and  a  more  seeming  moderation.  The  whole  is  to 
be  attributed  to  the  peculiar  relation  that  Mr.  Spencer,  the  father  of  the  young 
officer  who  was  executed,  bears  to  one  of  the  political  parties  of  the  country. 
^  Mercantile  cupidity  had  its  share,  as  usual,  in  the  course  of  a  portion  of  the 
city  press  on  this  occasion.  All  mercantile  communities  are  liable  to  these  tortu- 
ous views  of  principles,  on  such  subjects  as  are  supposed  to  affect  the  fluctuating 
and  sensitive  interests  of  trade.  As  a  body,  men  whose  entire  fortunes  are  con- 
stantly in  jeopardy  by  the  extent  and  hazards  of  their  operations,  are  not  to  be 
trusted  in  matters  that  are  supposed  to  conflict  with  their  interests.  The  magni- 
tude of  the  last  proves  too  much  for  poor  human  nature  ;  and  in  saying  what  we 
do  of  this  class  of  men,  we  are  not  saying  they  are  any  worse  than  the  rest  of 
mankind,  but  simply  that  they  are  no  better.  Others,  under  similar  inducements, 
would  prove  as  weak,  but  no  other  large  class  of  the  community  is  as  often, 
or  as  violently  tempted.  In  the  present  case,  it  was  supposed  that  ships  and  in- 
surers would  possess  greater  security  by  an  oriental  administration  of  justice,  than 
by  giving  to  the  citizen  a  hearing  before  he  was  consigned  to  the  gallows. 

It  is  important  to  the  well-meaning  and  disinterested  American  to  reflect  on 
many  of  the  consequences  of  this  influence  of  the  mercantile  class.  The  mer- 
chants are  collected  in  towns,  and  form  a  concentrated  body  of  great  temporary 
power,  when  disposed  to  act  unitedly.  They  control  most  of  the  leading  presses 
around  them,  by  means  of  their  advertising  and  other  patronage,  and  all  our  large  towng 
being  strictly  commercial,  it  is  no  unusual  thing  for  this  body  of  men  to  take  the 
initiative  in  public  opinion,  frequently  giving  it  a  false,  though  rarely  a  permanent 
direction.  That  individuals  of  this  class,  owing  to  greater  firmness  of  principle, 
and  more  clear-sightedness  in  morals,  rise  superior  to  the  mistakes  of  their  con- 
temporaries, is  undeniable.  Such  men  are  honorable  exceptions,  and  merely 
prove  the  existence  of  the  rule.  They  deserve  more  than  usual  commendation, 
however,  for  acting  right  while  strongly  tempted  to  do  wrong. 

The  personal  interest  that  was  used  in  the  case  of  Captain  Mackenzie  was  no 
more  than  was  natural.  This  officer  enjoyed  probably  a  much  higher  literary  rep- 
utation than  he  merited,  and  his  literary  associations  gave  him  the  advantage  of 
possessing  the  support  of  many  willing  and  ingenious  pens.  His  place  in  the  corps 
was  not  sufficiently  high  to  create  envy,  or  sufficiently  low  to  produce  indifference. 
Then  he  enjoyed  a  respectable  local  family  connexion,  which  was  active  and  effi- 


266  REVIEW  OF  THE  PROCEEDINGS 


cient  in  his  behalf.  We  do  not  live  in  the  age  of  Brutuses,  and,  as  things  go, 
it  was  to  be  expected  that  these  connexions  would  espouse  his  cause,  per  fas 
aut  nefas. 

Experience  is  daily  setting  at  naught  the  most  plausible  inferences  of  human  in- 
genuity. In  nothing  is  this  more  true  than  in  the  workings  of  political  systems. 
He  who  looks  only  to  theory  in  politics  will  find  stubborn  results  crossing  his 
logic  in  a  thousand  ways  that  he  least  expects,  the  management  of  the  affairs  of 
the  world  being  solely  a  thing  of  practice.  The  merely  bookish  philosopher  in  his 
speculations  usually  lays  down  the  dogma  of  the  independence  of  sentiment  that 
ought  to  be  the  result  of  popular  institutions,  while  the  man  of  observation  and 
experience  knows  that  the  tendency  is  to  create  so  much  community-power  as 
almost  to  annihilate  individuality. 

To  apply  these  principles.  The  theorist,  in  reasoning  on  the  facts  of  the  Som- 
ers  mutiny,  would  be  apt  to  pursue  a  thread  of  argument  something  like  this  : 
America  is  a  country  of  equal  rights,  in  which  person  and  property  are  justly 
protected  without  reference  to  station  or  wealth.  It  is  the  boast  of  the  meanest 
citizen,  that  the  laws  were  designed  for  his  especial  protection.  The  state  is,  in 
a  degree  at  least,  his  agent,  and  in  no  degree  his  tyrant.  Now,  here  is  an  officer 
of  that  state  who  has  used  the  authority  he  wields  in  the  name  of  the  state  to  take 
the  lives  of  three  of  his  subordinates  without  a  trial — by  his  own  account  of  the 
matter,  without  a  hearing — without  any  overt  act  of  mutiny,  violence,  or  of  resist- 
ance even  in  the  gasp  of  death.  He  may  be  right ;  but  the  community  demands 
that  he  show,  in  the  clearest  manner,  the  necessity  which  alone  can  justify  so 
grave  a  step.  If  the  name  of  an  American  citizen  can  not  be  a  warranty  that  life 
will  not  be  taken  without  the  accusation,  hearing,  and  condemnation,  required  by 
the  law,  of  what  use  are  our  boasted  rights  ?  If  the  American  is  not  assured  of 
this  privilege  on  board  an  American  ship-of-war,  which  exists  only  to  defend  those 
sacred  rights  on  the  ocean,  where  can  he  be  assured  of  its  exercise  at  all.  The 
whole  nation  stands  in  stern  expectation  of  the  justification  that  can  alone  excuse 
the  deed  :  "  Make  evident  the  overwhelming  necessity  for  exercising  our  author- 
ity for  thus  setting  aside  the  action  of  our  laws ;  for  sending  three  of  our  number 
into  eternity  with  so  brief  notice,  by  means  of  our  own  military  force  ;  for  using 
that  which  we  intended  as  an  instrument  of  shielding  the  American  on  the  high 
seas  as  an  instrument  of  his  destruction.  We  admit  that  circumstances  may  jus- 
tify so  extraordinary  a  departure  from  the  safe  rules  of  legal  inquiry,  but  of  the 
existence  of  these  circumstances  give  us  the  clearest  proof;  we  wait  for  it  impa- 
tiently, prepared  to  hold  you  to  a  most  rigid  responsibility,  and  yet  prepared  to  do 
you  ample  justice." 

Such  would  be  the  speculations  of  the  theorist.  In  Russia,  men  might  think 
the  emperor  ought  to  feel  thus,  but  none  would  dare  to  express  an  opinion  con- 
cerning the  justice  of  the  state.  In  England  and  France,  a  natural  sentiment, 
heightened  by  the  jealousy  of  power,  would  probably  have  impelled  the  bulk  of 
the  population  of  both  countries  to  assume  an  atlitude  of  so  much  menace,  as 
might  readily  have  induced  their  governments  to  incline  toward  a  too  little  dis- 
criminating, if  not  to  a  too  hasty  decision,  adverse  to  the  conduct  of  the  officer. 
In  this  country,  the  feeling  has  leaned  the  other  way,  no  small  part  of  the  popula- 
tion seeming  to  be  satisfied  with  an  exhibition  of  authority  on  the  part  of  a 
public  functionary,  that  is  flattering  to  a  species  of  national  pride  which  is  far 
more  general  than  creditable.  Men  have  talked  among  us,  and  we  doubt  not 
felt,  as  if  they  exulted  that  one  "  of  our  officers,  on  board  one  of  our  ships, 


OF  THE  NAVAL  COURT  MARTIAL.  267 

has  hanged  three  villains  who  had  conspired  to  run  away  with  one  of  our 
vessels  !" 

Of  the  three  classes  of  feeling  here  described,  the  second  is  the  safest  and  most 
conducive  to  justice.  The  time  has  been  when  the  clamor  of  England  might 
have  proceeded  too  far;  but  in  the  present  age,  the  justice  of  the  nation,  stimula- 
ted on  the  one  hand  by  the  distrust  of  hereditary  power,  and  restrained  on  the 
other  by  the  responsibilities  and  caution  of  the  government,  would  be  more  likely 
to  produce  a  just  result  in  such  a  case  as  this,  than  either  the  stifled  sentiment  of 
Russia,  or  the  self-satisfaction  and  passive  indifference  of  our  own  country. 

In  no  country  but  this,  that  has  any  claim  to  political  liberty,  would  the  govern- 
ment dare  to  pursue  the  course  which  has  been  taken  by  the  government  of  our 
own  in  connexion  with  this  matter.  We  think  that  a  very  cursory  examination 
of  the  facts  will  make  apparent  the  gross  impropriety  of  the  course  taken  by  our 
own  authorities. 

An  officer  arrives  from  sea,  and  reports  that  he  has  used  the  authority  derived 
from  government  to  execute  an  American  citizen,  coolly  and  under  the  semblance 
of  military  discipline,  without  a  trial,  or  even  without  a  hearing.  His  officers  sus- 
tain him  in  the  deed,  and  were  accessaries  to  it.  If  he  is  guilty,  they  are  guilty ; 
if  he  is  innocent,  they  are  innocent.  The  crew  were  the  compelled  instruments 
of  these  officers,  who  stood  over  them  with  arms  in  their  hands,  menacing  the 
disobedient  with  instant  death.  Now  what,  in  the  eyes  of  reason  and  justice, 
should  have  been  the  course  of  those  intrusted  with  the  vindication  of  the  laws 
under  circumstances  like  these?  Clearly,  to  have  at  once  separated  all  the  offi- 
cers from  all  the  men,  to  have  put  the  latter  under  the  charge  of  disinterested 
persons,  with  strict  orders  that  they  should  not  be  tampered  with;  either  for,  or 
against;  and  then  to  have  directed  the  necessary  legal  measures  with  the  closest 
attention  to  impartiality  and  justice.  Was  this  done?  We  all  know  it  was  not. 
A  court  of  inquiry  was  convened,  and  during  weeks  of  its  session,  the  men,  the 
only  impartial  witnesses  in  the  case,  were  left  immediately  under  the  military  con- 
trol of  those  whose  conduct  was  under  investigation.  It  is  idle  to  say  that  the 
officers  were  relieved  by  the  responsibility  assumed  by  their  commander.  They 
were  accessaries  before  the  act,  and  must  in  law,  as  in  reason,  stand  or  fall  with 
him. 

It  is  said  that  Captain  Mackenzie,  on  his  arrival  at  home,  made  a  brief  report 
of  the  event,  and  asked  for  a  court  of  inquiry.  It  is  unfortunate  for  all  parties,  if 
this  statement  be  true,  that  his  request  was  not  instantly  granted,  as  it  clearly 
ought  to  have  been,  let  the  facts  be  what  they  might.  It  was  enough  that  a  man 
had  been  executed  without  a  trial,  to  render  a  court  indispensable.  It  is  under- 
stood, however,  that  Mr.  Upshur,  then  secretary  of  the  navy,  asked  for  the  details, 
and  obtained  the  report  from  Captain  Mackenzie  which  has  since  been  published; 
the  most  extraordinary  document  of  the  sort,  perhaps,  that  ever  was  laid  before 
the  world.  On  this  report  we  intend  not  to  dwell,  except  as  relates  to  its  Jacts, 
and  as  it  is  directly  connected  with  that  obliquity  of  mind  which  we  conceive  to 
have  been  at  the  bottom  of  this  unfortunate  occurrence.  There  is,  however,  a 
passing  remark  due  to  Captain  Mackenzie,  in  reference  to  his  report.  It  has  been 
said  that  he  was  blindly  defended  by  a  portion  of  the  public  journals,  as  soon  as 
the  fact  of  the  execution  became  known,  owing  to  a  variety  of  influences  of  an 
improper  character.  It  is  but  just  to  add  that  he  was  also  blindly  assailed  ;  less, 
we  think,  from  any  determined  hostility  than  from  a  natural  horror  of  his  act,  and, 
in  the  end,  from  the  opposition  created  by  the  brutal  and  every  way  unjustifiable 


268  REVIEW  OF  THE  PROCEEDINGS 

course  of  some  of  his  supporters.  Among  other  things  falsely  charged  against 
Captain  Mackenzie,  one  or  two  were  connected  with  this  report.  It  was  said 
that,  after  the  executions,  he  had  ordered  the  crew  to  "  give  three  cheers  to  God," 
meaning  three  literal  cheers  in  honor  of  the  Deity.  Such  is  not  the  statement  of 
the  report,  in  which  singing  a  psalm  in  praise  of  the  Almighty  is  figuratively  so 
presented  to  the  crew.  The  last  is  bad  enough,  though  purely  a  matter  of  taste, 
without  dragging  in  the  revolting  misstatement.  Then  Captain  Mackenzie  is 
made,  by  many  persons,  to  say  to  young  Spencer,  as  a  reason  why  he  ought  to 
be  resigned,  that,  should  he  get  home,  his  father's  influence  would  protect  him, 
and  on  that  account  he  ought  to  submit  to  be  hanged  at  sea.  What  Captain 
Mackenzie  represents  himself  as  saying  was  totally  different.  Mr.  Spencer  had 
expressed  an  apprehension  that  this  affair  would  injure  his  father — a  creditable 
feeling,  and  one  that  was  touching,  under  the  circumstances — and  Mr.  Mackenzie 
endeavored  to  lessen  his  regrets  on  this  point,  by  stating  that  his  father's  influen< 
would  protect  him,  should  he  be  carried  home,  a  circumstance  that  would  be  moi 
likely  to  injure  the  father  than  the  execution  of  the  son. 

A  court  of  inquiry,  composed  of  Commodores  Stewart,  Jacob  Jones,  ai 
Dallas,  was  convened  in  this  case,  December  2Sth.  This  court  sat  until  Jai 
nary  19th,  when  it  sent  in  its  finding.  Previously  to  the  meeting  of  this  coui 
however,  or  immediately  after  his  arrival  in  New  York,  Captain  Mackenzie  pi 
several  more  of  his  crew  in  irons,  sending  them  along  with  the  four  survivors  of 
those  arrested  at  sea,  on  board  the  North  Carolina,  the  guard-ship.  This  fact  it 
will  be  important  to  remember  as  we  proceed  ;  the  charges  against  the  men  last 
ironed,  being  that  they  were  concerned  in  the  transactions  which  induced  the  ex* 
ecution  of  Spencer,  Small,  and  Cromwell.  We  repeat,  it  is  a  material  circum- 
stance to  remember. 

Nearly  all  the  officers  and  crew  of  the  Somers  were  examined  before  the  court 
of  inquiry,  the   exceptions   amounting  to  some  ten  or  twelve  only.     We   regret 
that  the  record  of  this  court  has  not  been  published,  as  it  clearly  ought  to  be,  and 
we  do  not  like  to  waste  time  on  mere  newspaper  reports.     It  is  safe,  however,  t< 
say  that  no  one,  Wales  excepted,  testified  as  to  any  direct  knowledge  of  any  mi 
tiny,  at   all.     The  testimony  of  Wales,  as  given  before  the  court  martial  vvhi( 
terminated  the  proceedings,  will  be  given  in  its  place.     Many  of  the  others,  in- 1 
eluding  most  of  the  officers,  saw,  or  fancied   they  saw,  evidence  of  a  disaffected! 
spirit  in  divers  of  the  crew  ;  certain  acts  were  construed  into  such  as  were  disre-j 
spectful  and  disobedient,  if  not  mutinous  ;  but  no  one  of  the  men  examined  coulc 
or  did  tell,  of  any  direct  knowledge,  on  his  part,  of  an  intention  to  seize  the  bri£ 
Captain  Mackenzie  affirmed  that  many  of  these  men  could  reveal  important  facts,! 
if  they  would.     Now,  nothing  is  plainer  than  the  justice  of  saying  Captain  Mac-( 
kenzie  ought  not  to  have  hanged  a  man  without  a  trial,  unless  in  possession  of 
undoubted  evidence  to  justify  the  deed,  and,  if  in  possession  of  such  evidence,| 
nothing  was   easier,  under   the  known   circumstances,  than  to  have  produced  it. 
What  the  testimony  offered  really  was,  will  be  seen  in  the  sequel  ;  but  it  was 
very  unsatisfactory  excuse  for  an  officer  who  had  resorted  to  so  high-handed 
measure,  to  find  it  necessary  at   all  to  complain   that  testimony  was  withheld  01 
the  investigation,  that  could  have  had  no  influence  on  his  course,  when  he  coi 
mitted  the  act,  inasmuch  as  it  was  no  more  forthcoming  then,  than  now.     Befoi 
an  allegation  of  this  sort  could  be  at  all  received,  or  believed,  it  was  clearly  ii 
cumbent  on  Captain  Mackenzie  to  show  that  these  persons  were  connected  wil 
the  plot,  and,  if  able  to  do  that,  to  have  them  punished. 

i 


OF  THE  NAVAL  COURT  MARTIAL.  269 

Although  we  do  not  possess  the  means  of  going  into  a  full  analysis  of  the  pro- 
ceedings of  the  court  of  inquiry,  they  can  not  be  passed  over  in  total  silence. 
About  its  finding  there  is  no  question;  that  having  been  published  by  authority. 
Neither  can  any  objection  be  raised  as  to  the  witnesses  examined,  though  some 
might  be  raised  as  to  those  who  were  not  examined.  It  was  proper,  under  the 
i circumstances,  to  examine  everybody  who  was  in  the  brig.  No  one  was  on  trial; 
but  the  object  was  to  obtain  the  truth  generally.  It  can  not  be  said  that  the  ac- 
cused men  ought  not  to  be  examined,  for,  on  such  a  principle,  a  commander 
!might  arrest  everybody  who  he  thought  would  testify  against  him,  and  carry 
jeverything  his  own  way.  Besides,  one  or  two  of  the  accused  were  examined  be- 
fore the  court  of  inquiry,  though  most  were  not!  We  could  point  out  many 
other  substantial  objections  to  the  proceedings  of  this  court,  but  the  whole  of  the 
main  question,  as  it  came  up  in  the  authorized  testimony  of  the  court  martial,  lying 
before  us,  we  shall  reserve  our  arguments  for  that.  A  few  words  on  the  finding 
of  the  court  of  inquiry,  therefore,  must  close  our  present  remarks. 

The  finding  of  the  court  of  inquiry  was  a  complete  justification  of  the  act  of 
Captain  Mackenzie,  and  of  all  concerned  in  it.  Apart  from  those  which  arise 
generally  from  the  state  of  the  entire  testimony,  as  it  has  been  published,  we  have 
three  particular  objections  to  this  finding.  In  one  place  the  court  says  :  "And 
that  the  brig  at  the  time  of  the  execution  was,  by  the  log,  distant  from  St.  Thom- 
as 525^  miles,  at  which  place  she  arrived  on  the  5th  December,  1842." 

Now,  why  is  this  fact  stated  with  so  much  emphasis  and  minuteness?  Of  what 
particular  importance  was  it  to  ascertain  the  precise  distance  between  the  Island 
of  St.  Thomas  and  the  spot  on  the  ocean  where  the  executions  took  place,  that 
this  court  should  thus  incorporate  the  fact,  with  their  solemn  finding  in  the  prem- 
ises '/  Some  meaning  must  attach  to  it,  else  would  it  have  been  just  as  pertinent 
to  have  stated  the  distance  between  the  spot  on  the  ocean  and  the  port  of  New 
York,  or  of  Lisbon,  or  of  Liverpool.  It  could  not  have  been  on  the  supposition 
that  St.  Thomas  was  the  nearest  port,  the  fact  being  notoriously  otherwise.  An- 
tigua, Barbuda,  Barbadoes,  Martinique,  Guadaloupe,  and  several  other  islands, 
were  much  nearer  to  the  place  of  execution  than  St.  Thomas;  some  of  them  not 
much  more,  if  any  more,  than  half  the  distance.  It  can  hardly  be  the  court 
meant  that  the  Somers,  being  bound  to  St.  Thomas,  could  not  and  ought  not  to 
have  turned  aside  from  her  course,  if,  by  so  doing,  the  terrible  necessity  of  using 
the  power  of  the  country  to  execute  an  American  citizen  without  a  hearing,  could 
be  avoided.  Had  such  been  the  meaning  of  the  court,  it  would  have  said  so. 
The  allusion  to  St.  Thomas  is  specific  ;  in  some  way,  that  island  must  have  been 
supposed  to  bear  a  peculiar  relation  to  the  proceedings  of  Captain  Mackenzie. 
To  suppose  the  court  makes  the  allusion  without  some  motive,  is  to  suppose  it 
would  trifle  on  a  most  solemn  subject,  and  will  not  be  believed. 

It  was  to  be  wished  that  the  court  of  inquiry  had  been  more  explicit  on  the 
subject  of  the  allusion  just  mentioned.  We  have  examined  the  point  with  care, 
and  can  discover  but  one.  solution  of  the  difficulty,  and  that  is  connected  with 
errors  in  law,  morals,  and  all  just  political  principles,  that  can  not  be  too  strongly 
condemned. 

Some  of  the  witnesses  openly  laid  down  the  doctrine  that,  in  their  opinion,  a 
man-of-war  ought  not  to  go  into  a  friendly  port  to  seek  protection  against  a  mutiny 
of  her  own  crew.  'If  a  ship-of-war  can  not  take  care  of  herself,' they  say  substan- 
tially,'there  is  no  use  in  her  being  a  ship-of-war.'  Captain  Mackenzie*  virtually 
admits,  before  the  court  martial,  that  he  and  his  officers  reason  e.l  in  the  same- 

i 


270  REVIEW  OF  THE  PROCEEDINGS 

way.  He  hoped  to  find  the  Vandalia  at  St.  Thomas,  and  should  have  gladly 
placed  himself  under  the  protection  of  her  guns,  but  not  under  that  of  any  foreign 
guns  (see  rec.,  p.  72).  If  the  court  does  not  adopt  this  reasoning,  we  can  see  no 
reasoning,  short  of  a  downright  mystification,  and  of  that  we  are  far  from  accusing 
its  members,  that  it  does  intend,  in  connexion  with  this  distance.  As  the  reason- 
ing involves  some  of  the  falsest  principles  that  could  be  received  into  a  service,  in 
our  judgment  at  least,  we  intend  to  meet  it  at  a  little  length.  While  it  was  con- 
fined to  a  youth,  it  might  be  pardoned  as  an  exaggeration  of  inexperience  and  the 
commencement  of  his  service,  but,  as  adopted  by  a  commander  in  the  navy,  an< 
still  more  so,  if  thus  indirectly  recognised  by  three  highly  respectable  and  ol< 
captains,  it  becomes  important  to  examine  whether  the  principle  be  right  or  wron^ 
safe  or  dangerous. 

In  the  first  place,  if  the  Somers  sought  to  get  under  the  protection  of  the  gui 
of  the  Vandalia  (see  rec.,  p.  72),  it  is  a  clear  admission  that  a  man-of-war  is  m 
always  competent  to  her  own  protection,  since  she  may  sometimes  want  anothe 
man-of-war  to  do  her  this  important  service.  This  is  equally  true,  if  she  were 
to  come  into  an  American  port  with  that  object.  Reasoning  on  the  logic  of  the 
young  witnesses  to  whom  there  has  been  allusion,  in  connexion  with  Captain 
Mackenzie's  avowed  intention  to  get  under  the  guns  of  the  Vandalia  if  he  could, 
we  find  ourselves  met  by  a  palpable  contradiction. 

Then  we  all  know  it  is  not  true  that  a  man-of-war  will  not  seek  protection,  in 
a  friendly  port,  in  grave  emergencies.  It  is  done  constantly,  in  peace,  or  in  war. 
Protection  is  sought  in  this  way,  from  the  elements,  from  the  horrors  of  starva- 
tion, from  enemies,  and  why  not  from  mutineers  ?  Does  any  one  believe  that 
Captain  Mackenzie  would  not  have  stood  for  Guadaloupe,  on  this  very  occasion, 
if  he  had  fancied  he  could  save  his  own  life,  and  those  of  his  officers,  by  so  doing, 
and  that  he  could  not  save  them  in  any  other  way  ?  Unless  so  much  be  assumed,, 
the  question  is  narrowed  down  to  this — ought  Captain  Mackenzie  and  his  officers? 
in  order  to  avoid  the  grievous  necessity  of  hanging  American  citizens  without  a  trial 
— nay,  without  a  hearing — to  submit  to  a  mortification  of  their  professional  pride, 
to  which  they  would  certainly  submit  to  save  their  own  lives  ?  Is  the  justice  of 
the  country  of  so  much  less  importance  than  the  lives  of  any  dozen  of  its  officers  ? 

But,  there  was  no  just  mortification  connected  with  the  affair  at  all.  Could 
Captain  Mackenzie  have  reached  Antigua,  or  any  other  island,  and  had  he  gone 
to  its  governor  and  said,  "  Sir,  I  command  a  small  American  vessel-of-war,  on 
board  which,  a  mutiny  exists.  I  am  without  marines,  and  dare  not  go  on  my  own 
coast,  with  certain  of  the  ringleaders  on  board.  I  can  hang  these  men,  and  thus 
get  rid  of  them,  and  assure  the  safety  of  my  brig  ;  but  America  is  a  country  of 
laws  ;  she  is  tender  of  the  rights  of  the  citizen,  and  most  of  all  of  his  life  ;  try  thej 
men  I  can  not,  and  I  prefer  the  humiliation  of  coming  to  ask  your  aid,  to  using  an  I 
authority  that  has  been  committed  to  me  in  order  to  enforce  the  laws  and  princi- 
ples of  my  country,  in  a  way  that  may  seem  to  do  violence  to  both:" — Would 
this  be  mortifying  to  any  right-thinking  man  ?  Is  there  an  American  living,  whose 
opinion  is  entitled  to  the  least  respect,  who  would  not  have  pointed  to  such  an 
act  in  exultation  and  honest  pride,  supposing  that  his  own  officer  had  acted  thus, 
and  a  foreign  officer  had,  at  the  same  time,  acted  on  the  avowed  principle  of  Cap- 
tain Mackenzie?  Would  not  the  whole  country,  in  such  a  case,  have  justly  ex-j 
ulted  in  the  superiority  of  its  own  system,  its  own  political  ethics,  as  opposed 
those  of  the  tyrants  of  Europe?  But,  running  into  a  port,  does  not  infer  the  n< 
cessity  of  asking  aid  of  any  one.  A  small  craft  might  have  been  chartered,  tl 


OF  THE  NAVAL  COURT  MARTIAL.        .  271 

mutineers,  under  charge  of  a  guard  and  an  officer,  placed  in  her,  and  a  convoy 
been  given  to  the  nearest  American  port,  and  not  a  foreign  officer  known  anything 
about  it.  Nay,  had  the  islands  been  ncared,  some  small  craft  would  probably  have 
been  met  at  sea,  with  which  this  arrangement  might  have  been  effected,  even  with- 
out entering  a  port  at  all.  If  the  prisoners  could  be  hanged,  they  could  certainly 
be  transhipped.  There  always  existed  the  ample  excuse  of  sending  the  men 
home,  in  the  month  of  December,  under  cover,  in  preference  to  leaving  them  ex- 
posed to  the  elements  on  tbe  deck  of  their  own  brig.  It  is  surely  permitted  to  an 
American  naval  officer  to  exhibit  humanity  in  some  form  or  other. 

Let  us  assume  a  new  state  of  facts,  and  apply  Captain  Mackenzie's  principle  to 
it.  The  Soraers  is  lying  in  a  friendly  port,  when  Mr.  Wales  reveals  his  secret. 
All  the  dangers  exist,  which  Captain  Mackenzie  supposes  to  have  existed  on  board 
his  brig,  on  the  1st  December.  Now,  he  could  not  rely  on  the  naked  circum- 
stance of  being  in  a  friendly  port,  without  communication  with  its  authorities,  else 
would  his  decision  not  to  seek  the  nearest  friendly  port  rise  up  in  judgment  against 
him.  If  the  mere  fact  of  being  in  a  port  is  security,  where  was  the  humiliation  of 
going  quietly  into  a  friendly  port,  and  anchoring?  But  the  seizure  might  as  easily 
take  place  in  a  port,  as  at  sea.  A  man-of-war  goes  and  comes  without  being 
questioned,  and  the  plot  could  have  been  executed  in  a  harbor  as  well  as  out  on 
the  ocean.  The  danger  exists,  then — it  is  necessary  to  suppose  this,  or  there  was 
no  excuse  for  not  running  for  the  nearest  haven — and  something  must  be  done  to 
save  the  brig.  The  men  could  not  be  hanged  in  a  neutral  port,  which  would  be 
an  invasion  of  neutral  territory  ;  hanged  they  must  be,  or  they  will  seize  the  brig  ; 
honor  forbids  asking  protection,  and  no  alternative  would  remain,  under  Captain 
Mackenzie's  theory,  but  to  go  to  sea  in  order  to  save  the  vessel,  by  hanging  the 
ringleaders  !  To  this  dilemma  does  his  doctrine  reduce  him. 

We  do  not  affirm  that  the  court  means  to  maintain  the  untenable  position  that 
an  American  man-of-war  is  always  to  be  sufficient  for  her  own  wants,  agreeably  to 
the  unfledged  notions  of  one  or  two  of  the  witnesses,  but  we  do  say  that  we  can 
see  no  other  application  of  their  fact,  but  that  we  have  mentioned.  A  more  per- 
nicious principle  than  that  avowed  by  Captain  Mackenzie,  in  connexion  with  this 
point,  can  not  well  be  imagined,  and,  if  there  are  any  in  the  country  who  believe 
he,  or  any  other  man,  would  carry  it  out,  in  a  case  directly  affecting  his  own  lifef 
with  his  eyes  open,  we  are  not  of  the  number. 

The  other  point  in  the  finding  to  which  we  especially  object,  is  set  forth  in 
these  words  :  u  That  Commander  Mackenzie,  under  these  circumstances,  was  not 
bound  to  risk  the  safety  of  his  vessel,  and  jeopard  the  lives  of  the  young  offi- 
cers, and  the  loyal  of  his  crew,  in  order  to  secure  to  the  guilty  the  form  of  trial," 
&c.,  &c. 

Now,  nothing  can  be  more  just  than  to  say  that  Captain  Mackenzie  was  not 
obliged  to  risk  his  own  life,  or  that  of  his  officers  (the  age  we  consider  to  be  a 
mere  ad-captandum  allusion,  an  old  man  having  precisely  the  same  rights  in  the 
premises  as  a  boy),  in  a  clear  case  of  danger.  To  affirm  this,  is  simply  to  say 
that  the  question  was,  it  is  your  life  or  mine,  and,  as  you  are  the  aggressor,  and 
are  clearly  wrong,  you  ought  to  be  the  sufferer.  It  is  the  right  of  self-defence, 
and  the  evidence  of  that  necessity  being  clear,  there  was  no  call  for  refinement  in 
the  reasoning.  But  the  question  here  was,  firstly,. of  the  guilt ;  secondly,  of  the 
unavoidable  character  of  the  executions.  Who  will,  or  can  say,  the  guilt  of  Crom- 
well was  clearly  established  ?  It  has  been  guessed  at,  not  proved.  Then  how 
was  it,  as  to  the  necessity,  and  what  is  the  precise  point  at  which  a  commander 


272  REVIEW  OF  THE  PROCEEDINGS 

is  to  be  at  liberty  to  say  that  his  young  officers  are  to  cease  to  run  any  risk  ?  We 
all  must  submit  to  certain  risks,  ashore  or  afloat.  A  man  may  imagine  another 
seeks  his  life,  may  have  the  fullest  moral  conviction  of  the  fact,  but  he  can  not  be 
permitted  to  shoot  the  object  of  his  dread  to  put  an  end  to  these  risks,  until  he  is 
driven  to  the  wall.  Any  other  doctrine  than  this,  would  soon  make  the  country 
a  slaughter-house.  We  conceive  the  only  way  in  which  this  point  can  fairly  tell 
in  favor  of  Captain  Mackenzie,  is  to  say  that  he  had  no  other  means  of  saving  his 
Vessel,  himself,  or  his  officers,  than  to  hang  those  he  did  hang.  That  is  a  justifi- 
cation no  one  will  dispute  ;  not  even  the  law.  Did  the  facts  sustain  him  legally, 
they  would  sustain  him  morally;  but  to  assume  that  men  are  to  run  no  risks,  or 
what  they  imagine  risks,  and  particularly  man-of-war's  men,  before  they  rig  the 
gallows,  is  to  assume  what  neither  law  nor  reason  will  sustain.  We  take  this  por- 
tion of  the  finding  to  possess  more  of  the  character  of  an  argument,  than  of  a  clear, 
dispassionate,  legal  decision.  This  doctrine  of  risks,  completely  developed,  would 
soon  destroy  the  best  marine  that  ever  showed  its  flag  on  the  ocean. 

While  the  court  of  inquiry  was  in  session,  the  prisoners  remained  in  confine- 
ment, ironed  most  of  them,  without  any  charges  being  brought  against  them.  The 
truth  is  not  to  be  concealed  ;  they  were  dealt  with  as  sailors,  and  not  as  citizens. 
It  often  happens  on  board  ship,  that  severe  and  prompt  measures  become  neces- 
sary, and  military  discipline  sometimes  unavoidably  conflicts  with  civil  rights. 
Pending  the  existence  of  the  court  of  inquiry,  there  might  have  been  a  sufficient 
reason  for  keeping  these  men  in  confinement ;  there  was  none  for  keeping  them  in 
irons,  we  think,  as  is  shown  in  the  fact  that  some  were  not  thus  fettered  ;  but,  the 
moment  that  court  ended,  they  were  entitled  to  freedom,  or  to  know  the  specific 
charges  brought  against  them.  No  charges  were  brought,  however ;  week  passing 
after  week  in  painful  durance.  In  the  meantime,  an  attempt  was  made  to  indict 
Captain  Mackenzie  for  murder.  The  grand  jury  asked  for  instructions  from  the 
judge,  on  the  question  of  law  ;  and,  after  a  solemn  hearing  of  counsel,  the  court 
charged  that  it  was  not  competent  for  a  civil  tribunal  to  interfere  with  matters 
that  were  pending  before  a  naval  tribunal,  in  consequence  of  which  the  bill  was 
ignored. 

We  have  no  intention  to  extend  this  article  unnecessarily,  by  dwelling  on  these 
proceedings  in  the  district  court.  We  shall  briefly  say,  that,  after  examining  the 
subject  at  some  length,  we  are  of  opinion  that  the  case  belonged  exclusively  to 
the  civil  tribunals,  though  the  court  of  inquiry  was  perfectly  proper.  So  many- 
questions  were  involved  in  the  affair,  that  it  was  right  the  department  should  be 
put  in  full  possession  of  the  facts;  but,  this  inquiry  ought  not,  in  the  least,  to  in- 
terfere with  the  ordinary  course  of  the  justice  of  the  country.  Captain  Mackenzie 
was  not  on  trial,  before  the  court  of  inquiry  ;  he  was  not  even  arrested  ;  so  far 
from  having  his  sword  taken  from  him,  he  continued  in  command  of  the  Somers. 
Nor  was  his  presence  necessary  for  the  legal  proceedings  of  the  investigation.  He 
might  have  taken  his  hat  and  walked  away,  as  the  late  Commodore  Porter  did 
from  the  court  of  inquiry  in  the  Foxardo  business,  had  he  seen  fit.  Unless  or- 
dered to  attend,  with  a  view  to  facilitate  the  proceedings,  he  was  under  no  legal 
obligation  to  be  present,  and,  if  ordered  to  be  present,  it  was  not  as  a  prisoner, 
but  rather  as  a  witness.  An  officer  is  no  more  in  the  hands  of  the  law,  pending 
a  court  of  inquiry  into  his  conduct,  than  is  the  citizen,  while  a  grand  jury  is  hear- 
ing testimony  in  his  case. 

There  is  something  unexplained  connected  with  the  proceedings  of  the  depart- 
ment, during  the  brief  interval  that  occurred  between  the  publication  of  the  find- 


OF  THE  NAVAL  COURT  MARTIAL.  273 


Ing  of  the  court  of  inquiry  and  the  arrest  of  Captain  Mackenzie,  under  the  charge 
of  murder.  Something-  like  a  very  supererogatory  parade  of  impartiality  appeared 
in  the  government  journal  because  the  enormous  opportunity  of  two  or  three  days 
was  left  for  the  friends  of  Cromwell  to  procure  Captain  Mackenzie's  arrest  by 
ordinary  criminal  process,  the  party,  as  it  has  been  said,  passing  that  time  in  a 
bailiwick  where  the  usual  course  would  not  be  effective  against  him.  As  soon  as 
put  under  arrest  by  his  military  superiors,  Captain  Mackenzie  had  the  pledge  of 
a  decision  already  made  by  the  district  court  judge,  that  he  would  not  interfere 
with  a  military  tribunal.  We  should  like  to  see  these  proceedings  examined  by 
some  one  who  is  more  familiar  with  the  facts  than  we  are  ourselves.  It  appears 
by  the  record,  however,  that  the  proceedings  were  so  much  hurried  that  the  judge 
advocate  was  not  prepared  to  open  when  the  court  martial  convened. 

There  is  another  point  connected  with  the  finding  of  the  court,  to  which  we 
will  advert.  It  says,  that  "  during  the  confinement  of  the  prisoners,  sullenness, 
discontent,  inattention  to  duty,  disobedience  of  orders,  often,  as  seamen  know,  and 
na,val  records  prove,  the  sole  precursors  to  open  acts  of  violence  and  blood,  were 
manifested  by  the  crew,"  &c. 

The  reasoning  of  this  sentence  strikes  us  as  singular  and  untenable.  Mutinies 
have  two  general  characters,  the  one  of  disaffection,  the  other  of  conspira c\j.  That 
of  the  Hermione  was  of  the  first  class,  that  of  the  Bounty  of  the  last.  One  pro- 
ceeded from  resentment,  ill-treatment,  and  a  desire  for  revenge  ;  the  other  from 
-a  plot,  conceived  to  carry  out  a  favorite  object.  That  symptoms  of  the  feeling 
which  produces  the  first  class  of  mutinies  should  be  discoverable,  is  as  natural  as 
it  is  that  the  mere  conspirator  should  aim  studiously  at  concealment.  The  mutiny 
of  the  Somers,  if  mutiny  were  seriously  contemplated,  was  admitted  lo  be  of  the 
latter  class. 

Shortly  after  the  arrest  of  Captain  Mackenzie  (arrested  technically ;  not  con- 
fined, though  charged  with  murder,  while  the  alleged  mutineers,  against  whom 
no  legal  charges  were  ever  brought,  were  mostly  kept  in  irons  and  under  the  eyes  of 
sentinels),  a  court  martial  was  detailed  for  his  trial.  The  whole  proceeding  was 
so  singular  as  to  deserve  a  notice.  The  charges  will  be  found  at  length,  p.  1  of 
the  appended  record. 

These  charges  are  five  in  number,  viz.,  murder,  oppression,  illegal  punish- 
ment, conduct  unbecoming  an  officer,  cruelty  and  oppression.  The  first  three 
of  these  charges  referred  to  the  executions,  in  their  specifications;  the  fourth  re- 
ferred to  special  treatment  alleged  to  have  been  given  to  Mr.  Spencer,  and  the 
fifth  to  alleged  punishments  inflicted  on  different  individuals  of  the  crew. 

In  the  course  of  the  trial,  the  judge  advocate  laid  down  the  law  in  such  a  man- 
ner as  to  reduce  these  charges  to  three;  murder,  oppression,  and  illegal  punish- 
ment. The  charge  of  general  cruelty  appears,  however,  to  have  been  abandoned 
for  the  want  of  proof.  It  probably  never  had  any  legal  foundation.  Captain 
Mackenzie,  then,  was  virtually  tried  on  the  three  charges  of  murder,  illegal  pun- 
ishment, and  oppression,  the  specifications  referring  lo  the  hanging  of  the  three 
persons  so  often  named. 

The  court  sat  nearly  forty  days,  during  which  time  one  of  the  ablest  of  its  mem- 
bers withdrew  on  account  of  indisposition.  The  accused  was  acquitted.  The 
sentence  was  no  sooner  known  than  the  journals  began  to  circulate  rumors  of  ihe 
manner  in  which  the  court  had  been  divided.  On  the  one  side  it  was  said  the 
opinion  was  unanimous,  and  the  finding  an  "  honorable  acquittal."  This  last  as- 
sertion was  audaciously  persevered  in,  lor  a  long  time,  directly  in  the  face  of  the 

35 


274  REVIEW  OF  THE  PROCEEDINGS 

phraseology  of  the  finding  itself,  with  the  additional  equally  unfounded  declara- 
tion that  the  president  "  approved"  of  the  proceedings  of  the  court. 

Owing  to  circumstances  that  are  too  familiar  to  need  repetition,  the  facts  have 
been  drawn  out,  on  authority,  and  they  appear  to  be  as  follows  :  On  the  charge 
of  murder,  three  of  the  court  voted  that  Captain  Mackenzie  was  "  guilty,"  and 
nine  voted  that  he  was  "  not  guilty."  As  the  law,  to  make  up  a  finding  that  should 
touch  the  life  of  the  accused,  required  a  vote  of  two  thirds,  the  vote  would  have 
acquitted  Capt.  Mackenzie  on  this  charge,  had  it  even  stood  seven  against,  to  five  for 
him.  On  the  charge  of  illegal  punishment,  the  vote  appears  to  have  been  four,  guil- 
ty ;  eight,  not  guilty.  On  the  charge  of  oppression,  the  vote  was  an  acquittal* 
The  question  of  the  phraseology  of  the  general  finding  now  arose  in  a  conversation, 
which  made  its  importance  apparent.  All  must  now  vote  for  "  acquitted,"  as  the 
accused  had  been  found  "not  guilty"  on  each  charge;  but  findings  often  say 
"honorably  acquitted."  On  this  last  point  the  vote  was  taken,  when  nine  voted 
for  "  acquitted,"  and  three  for  "honorably  acquitted."  The  finding  of  a  simple 
acquittal  was  consequently  sent  into  the  department.  Now,  by  the  law,  no  "sen- 
tence" of  a  court  martial — cases  that  occur  out  of  the  country,  excepted — can  be 
carried  into  execution,  without  the  "approval"  of  the  president.  In  this  case 
there  was  no  sentence,  and,  of  course,  no  "  approval"  was  necessary.  A  general 
order  appeared  from  the  department,  stating  that  the  finding  was  "confirmed,"  but 
ithe  signature  of  President  Tyler  was  not  affixed.  With  this  brief  history  of  the 
facts,  we  proceed  to  a  consideration  of  the  merits  of  this  important  case. 

In  forming  our  estimate  of  the  conduct  of  Captain  Mackenzie  and  his  officers, 
it  is  indispensable,  first  to  ascertain  on  what  points  it  turns.  Many  varying  posi- 
tions have  been  laid  down  in  the  premises.  Some  have  contended  that  Captain 
Mackenzie  was  bound  to  show  first,  that  a  mutiny  actually  existed  ;  second,  that 
the  parties  executed  were  connected  with  it;  third,  that  the  executions  were 
indispensable  to  the  safety  of  the  brig;  and,  in  the  last  place,  that  every  oppor- 
tunity that  was  necessary,  and  ivhicli  the  safety  of  the  vessel  would  allow,  was 
given  to  the  men  hanged,  to  vindicate  themselves  from  the  charges  on  which  they 
were  executed.  This,  as  we  understand  him,  was  substantially  the  ground  taken 
by  the  judge  advocate. 

We  do  not  conceive  this  to  have  been  the  true  issue,  though  we  subscribe  in 
part  to  the  last  condition. 

Others  maintained  it  was  sufficient  for  the  vindication  of  Captain  Mackenzie, 
that  he  conscientiously  thought  the  first  three  facts  just  named,  existed.  These 
persons  were  silent  on  the  subject  of  the  last  condition;  probably  under  a  secret 
consciousness  it  never  was  fulfilled.  A  variety  of  modified  opinions  have  been 
given,  varying  between  these  two.  We  conceive  the  true  issue,  both  in  law  and  in 
morals,  to  have  been  this.  Captain  Mackenzie  was  bound  to  show  that  such  a 
case  was  presented  to  him,  as  JUSTIFIED  him  in  BELIEVING  in  all  the  facts  mention- 
ed in  the  first  of  the  two  cases  given,  and  then  to  show  that  he  allowed  the  accused 
every  opportunity  of  defence,  that  he  was  justified  in  believing  could  be  granted 
to  them,  with  safety  to  his  vessel. 

The  reader  will  see  our  issue  does  not  turn  on  the  literal  facts  of  the  case,  but 
on  the  manner  in  which  these  facts,  real  or  supposed,  were  presented  to  Captain 
Mackenzie.  A  contemplates  a  silly  frolic,  blackens  his  face,  arms  himself,  and 
breaks  into  his  friend's  house,  in  the  dead  of  night,  and  attempts  to  frighten  him. 
But  B  shoots  A.  Now  if  it  can  be  shown  that  the  frolic  of  A  had  been  pre- 
viously communicated  to  B,  this  would  be  murder.  Some  minor  facts  might 


OF  THE  NAVAL  COURT  MARTIAL.  275 

exist  to  render  it  manslaughter,  possibly  ;  but  it  would  be  justifiable  homicide, 
supposing  B  to  have  been  deceived.  Thus,  with  Captain  Mackenzie ;  Mr. 
Spencer  may  have  contemplated  an  idle  mystification,  but  have  mystified  so  pro- 
foundly as  to  justify  his  execution  ;  were  the  other  conditions  of  our  issue  fulfilled. 
In  this  case,  there  would  have  been  no  real  mutiny,  but  merely  sufficient  appear- 
ances of  one. 

On  the  other  hand,  a  mutiny  might  have  existed  without  the  facts  of  the  case, 
as  they  were  presented  to  Captain  Mackenzie,  justifying  that  officer  in  believing 
in  the  guilt  of  the  parties,  and  consequently  without  justifying  their  executions, 
whatever  might  be  the  danger  of  the  vessel.  This  is  a  point  on  which  we  know, 
from  personal  explanations,  that  one  of  the  judges  of  Captain  Mackenzie,  or  at 
least  a  member  of  one  of  the  courts,  differs  from  us.  That  gentleman  seemed 
to  think  if  guilt  were  subsequently  proved,  it  was  enough  to  justify  Captain  Mac- 
kenzie on  that  point,  although  he  did  not  get  the  evidence  until  after  the  execu- 
tion !  Many  lawyers  would  probably  take  the  same  ground,  although  we  know 
it  to  be  untenable  in  morals,  and  believe  it  to  be  so  in  law.  We  conceive  the 
opinions  of  lawyers  would  be  apt  to  be  influenced  by  what  would  be,  and  ought 
to  be  done,  in  a  case  that  approaches  near  to  our  own.  in  appearance,  though 
it  does  not  touch  it.  Thus,  if  A  be  indicted  for  an  offence,  under  supposed 
circumstances,  and  it  should  turn  out  on  the  trial,  that  he  committed  the  offence, 
but  under  another  set  of  circumstances,  he  would  be  found  guilty,  provided  the 
technicalities  did  not  necessarily  make  another  issue.  This  would  be  right,  as 
the  guilt  of  the  party  tried,  would  be  the  point  to  reach.  But,  in  the  case  before 
us,  the  point  to  be  reached,  was  the  guilt  or  innocence  of  Captain  Mackenzie, 
not  that  of  Mr.  Spencer.  Jurors  would  be  greatly  influenced  by  such  facts,  doubt- 
less ;  but  ought  they  to  be  ?  Is  this  a  case  in  which  a  man  is  to  be  justified  by 
guessing  at  all,  even  though  he  guess  right  ? 

It  is  a  poor  rule  that  will  not  work  both  ways.  Captain  Mackenzie's  friends 
would  be  the  first  to  apply  our  issue  in  his  behalf,  should  any  proof  unexpectedly 
appear  to  show,  unequivocally,  that  Cromwell,  for  instance,  was  innocent.  They 
would  then  fall  back  on  our  principle,  and  affirm  that  appearances  justified  Captain 
Mackenzie  in  believing  him  guilty.  In  this  they  would  take  fair  grounds,  so  far 
as  principles  are  concerned,  and  we  can  not  see  how  Captain  Mackenzie's  conduct 
can  be  vindicated  by  facts  that  appear  after  the  execution.  We  repeat,  we  know 
he  could  not  thus  be  vindicated,  in  morals,  and  morality  and  legality,  in  questions 
like  this,  usually,  if  not  uniformly,  run  in  parallel  lines.  We  do  not  dwell  on 
this  point  because  we  deem  it  very  essential  to  what  is  to  follow,  but  merely  that 
we  may  settle  principles  as  we  proceed.  It  is  a  nice  question,  we  admit,  on  which 
much  may  be  said  on  both  sides.  We  should  be  willing  to  examine  this  case  on 
the  broader  ground  of  the  two,  though  we  think  in  so  doing  we  should  concede 
a  just  principle. 

Our  issue,  then,  is  this.  Such  a  state  of  facts  must  be  made  out  as  would 
justify  Captain  Mackenzie  and  his  officers  in  thinking  the  parties  guilty,  and  in 
thinking  the  executions  absolutely  necessary  in  order  to  save  the  brig,  after  giving 
the  accused  every  opportunity  of  defence  that  was  compatible  with  prudence.  To 
raise  any  issue  short  of  this,  would  be  a  mockery  of  justice,  and  would  be  to 
maintain,  in  effect,  that  the  life  of  the  American  citizen,  on  board  an  American 
man-of-war,  is  to  be  held  on  the  tenure  of  his  commander's  notions,  however  wild 
or  unreasonable.  The  reasoning  must  be  such  as  to  satisfy  the  common  mind, 


276  REVIEW  OF  THE  PROCEEDINGS 

and  the  parties  accused  must  have  every  available  opportunity  of  defending  them- 
selves. 

Having  thus  laid  down  our  premises,  as  relates  to  what  we  conceive  to  be  the 
true  issue,  we  will  attempt  to  settle  one  or  two  other  principles  of  a  very  different 
character,  before  we  enter  on  the  investigation  of  facts.  It  has  been  said  that 
Captain  Mackenzie's  literary  pursuits  had  given  him  the  support  of  many  literary 
men.  Among  others  of  that  class,  has  appeared  a  gentleman  who  has  high  claims 
to  be  heard,  and  who  lays  down  the  position,  that  the  size  of  the  Somers,  was 
greatly  against  the  officers  in  the  event  of  a  conflict  with  the  crew!  We  con- 
ceive that  nothing  can  be  more  erroneous. 

The  Somers  is  a  brig  of  266  tons.  Attempts  have  been  made  to  show  that 
her  cubic  contents  would  greatly  reduce  this  tonnage,  as  if  that  were  a  matter  of 
any  moment.  The  largest  tonnage  is  obtained  by  measurements  of  her  length 
and  breadth,  and,  as  both  these  refer  to  her  dimensions  on  deck,  they  alone  can 
affect  the  scene  of  the  conflict. 

The  size  of  the  Somers  was,  perhaps,  as  near  as  possible  to  that  which  was  the 
most  desirable  for  her  officers,  in  the  event  of  such  a  conflict.  Had  she  been 
much  smaller,  all  her  officers  and  petty  officers  might  not  have  been  able  to  act 
together,  and  thus  have  lessened  their  efficiency  ;  while,  had  she  been  much 
larger,  there  might  have  been  too  much  to  defend  or  to  avoid,  for  so  small  a 
party.  Place  twenty  men  on  a  frigate's  quarter-deck,  and  they  could  be  turned, 
or  assailed  from  so  many  points  as  to  render  them  weak  ;  but  twenty,  or  even 
ten,  armed  men,  on  the  quarter-deck  of  a  brig  of  266  tons,  make  a  very  formidable 
array,  as  opposed  to  any  number  of  unarmed,  or  even  armed  men,  that  could 
approach,  at  a  time.  It  is  merely  the  old  fact  that  a  small  body  can  defend 
a  defile  against  an  enemy  that  would  overwhelm  it  in  a  plain. 

The  size  of  the  Somers  was  favorable  to  her  officers  in  another  point  of  view. 
We  see  nothing  to  have  prevented  Captain  Mackenzie  from  sending  all  but  his 
officers  below,  of  securing  the  gratings,  and  of  carrying  the  brig  across  the  ocean, 
if  needed,  with  the  gentlemen  of  the  quarter-deck  alone.  The  idea  of  men's 
knocking  down  bulkheads,  with  firearms  thrust  through  the  gratings,  within  six 
feet  of  their  heads,  strikes  us  as  being  a  little  forced.  We  believe  a  single  sen- 
tinel would  have  kept  the  whole  of  the  Somers'  crew  at  a  respectful  distance, 
under  such  circumstances.  No  man  is  fond  of  "  belling  the  cat,"  and  a  volley  fired 
through  a  bulkhead,  would  give  it  particular  sanctity.  But  admitting  the 
officers'  rooms  were  given  up  to  the  crew,  they  would  still  be  prisoners.  The 
magazine  could  be  easily  defended  by  the  firearms  above  it,  and  what  could  the 
people  do  below?  A  few  of  them,  if  they  proved  turbulent,  might  have  been  shot 
through  the  gratings,  and  we  think  the  first  case  of  this  sort,  would  have  brought 
the  remainder  to  their  senses.  As  for  Captain  Mackenzie's  ability  to  send  all 
hands  below,  who  can  doubt  it,  when  it  is  known  that  he  made  them  hang  three 
of  their  supposed  ringleaders  ? 

Some  may  think  that  the  officers  would  not  have  been  of  sufficient  force  to 
handle  the  vessel,  under  these  circumstances.  Here  the  size  of  the  Somers 
was  clearly  in  their  favor.  Commodore  Rodgers  managed  a  frigate  under  still 
more  trying  circumstances,  in  1799,  and  Chauncey  actually  brought  a  ship  up  to 
Sandy  Hook,  single-handed,  having  to  cook,  attend  his  sick,  and  take  care  of 
his  vessel  for  several  days,  quite  alone.  To  say  that  ten  men  and  boys  could 
not  handle  a  vessel  like  the  Somers  in  the  tradewinds,  is  to  say  that  they  were 
unusually  inefficient.  But  Captain  Mackenzie  was  not  reduced  so  low.  All  the 


OF  THE  NAVAL  COURT  MARTIAL.  277 

best  of  his  crew,  the  petty  officers,  and  a  seaman  or  two,  to  the  number  of  nine, 
had  so  much  of  his  confidence  as  to  be  armed  at  the  crisis  of  the  execution,  and 
they  surely  might  have  been  relied  on.  This  would  have  given  all  the  force 
necessary  to  an  easy  control  of  the  vessel.  Then  it  is  probable  fifteen  or  twenty 
of  the  younger  boys  might  have  been  picked  out,  who  would  have  been  of  ser- 
vice either  in  doing  light  work  aloft,  or  in  keeping  a  lookout  on  the  movements 
below  and  about  whose  fidelity  there  could  be  no  question.  The  witnesses  speak 
of  a  good  many  of  this  character. 

We  see  no  great  difficulty  in  a  vessel-of-war  like  the  Somers,  being  kept  com- 
pletely within  the  control  of  her  officers,  under  ordinary  circumstances,  even 
supposing  a  mutinous  spirit  to  have  prevailed,  after  the  existence  of  the 
mutiny  is  known,  and  the  ringleaders  are  in  irons. 

A  mutiny  detected  is  a  mutiny  suppressed.  The  king's  name  is  a  tower  of 
strength.  The  wavering,  the  timid,  the  prudent,  then  all  range  themselves  on 
the  side  of  the  law,  that  being  the  safest  side.  The  dread  of  treachery  usually 
exposes  all  the  secrets.  It  is  one  of  the  remarkable  features  of  this  transaction 
that,  Mr.  Wales  and  Small  excepted,  no  one  has  been  disposed  to  betray  the 
confidence  of  Mr.  Spencer.  With  so  many  in  irons  and  menaced  with  the 
gallows,  not  a  man  has  been  found  willing  to  come  forward,  under  the  im- 
pulses of  either  contrition,  fear,  or  cupidity,  to  reveal  the  secrets  of  this  for- 
midable conspiracy  !  This  very  unusual  circumstance  is,  of  itself,  of  a  nature  to 
throw  a  shade  of  distrust  over  the  belief  of  its  existence,  to  the  extent,  at  least, 
that  was  apprehended.  It  is  probably  the  only  case  of  the  sort  on  record. 

While  on  this  branch  of  the  subject,  we  will  endeavor  to  dispose  of  some 
other  points  that  have  proved  stumbling-blocks  to  those  who  are  unacquainted 
with  ships.  Grave  pictures  have  been  drawn  of  the  risks  run  at  night;  of  the 
danger  of  a  rush  aft,  whenever  an  order  was  given  to  do  any  duty  on  the  quarter- 
deck, and  of  the  general  hazards  of  the  darkness.  The  answers  to  all  these 
difficulties  are  very  simple.  In  the  first  place,  there  was  no  necessity  for  dark- 
ness, every  man-of-war  possessing  means  of  lighting  her  decks  ;  in  the  next  place, 
there  was  no  necessity  for  a  single  individual  of  the  crew  coming  on  the  quarter- 
deck at  all.  Captain  Mackenzie  appears  to  have  had  nineteen  men  and  boys 
whom  he  armed,  at  the  crisis,  and  these  he  doubtless  put  in  watch  and  watch; 
and,  if  nine  men  and  boys  are  not  competent  to  do  all  that  is  to  be  done  on  the 
quarter-deck  of  a  brig  of  266  tons,  how  do  so  many  merchant-vessels  sail  for 
years  much  shorter-handed  ?  A  rope  might  have  been  stretched  across  the  deck, 
and  an  order  given  for  no  man  to  pass  it,  unless  called  by  name,  on  the  pain  of 
death.  This  would  have  prevented  everything  like  a  surprise  of  the  quarter- 
deck ;  did  that  fail,  Mr.  Spencer's  own  alleged  expedient,  that  of  two  of  the 
quarter-deck  guns  pointed  forward,  loaded  with  canister,  would  have  rendered 
the  quarter-deck  of  so  small  a  craft,  as  inviolable  as  a  sanctuary.  The  last  ex- 
pedient has  often  been  resorted  to,  and  we  can  recall  no  instance  in  which  it  has 
ever  failed  to  command  the  deck.  In  a  vessel  of  the  Somers'  size,  and  with  guns 
so  heavy  (321b.  carronades),  the  gangways  would  be  like  two  doors  to  pass  in 
face  of  such  a  discharge.  All  the  other  guns  might,  if  it  were  thought  necessary, 
have  been  discharged,  and  the  spare  shot  secured.  We  conceive  that  a  vessel 
of  the  Somers'  size,  under  such  circumstances,  even  admitting  a  pretty  wide- 
spread disaffection  to  exist  forward,  would  have  the  chances,  as  nine  to  ten,  in 
favor  of  her  officers,  and  that  risk,  it  strikes  us,  might  have  been  run  before  an 
American  citizen  was  hanged  without  a  trial.  To  come  to  the  facts;  thetesti- 


278  REVIEW  OF  THE  PROCEEDINGS 

mony  of  Wales  is  first  in  order,  as  the  executions,  with  the  leading  attendant 
circumstances,  are  not  denied. 

The  first  thing  that  strikes  us  in  the  testimony  of  the  purser's  steward,  is  the 
abruptness  with  which  Mr.  Spencer  opens  his  plot.  Wales  swears  this  was  the 
first  communication  he  ever  had  with  Spencer  on  the  subject  (see  record,  p.  11), 
and  yet  the  latter  began  with  "  Did  I  fear  death  ?  was  I  afraid  of  a  dead  person,  and 
dare  I  kill  a  person  ?"  An  oath  of  inviolable  secresy  was  then  asked  and  given. 
Without  canvassing  the  probability  of  such  a  statement,  we  will  assume  its  truth, 
and  ask  what  is  the  just  inference  ?  Clearly,  that  he  who  could  proceed  thus, 
was  not  very  formidable  as  a  conspirator,  unless  indeed  he  thoroughly  knew  his 
man.  An  oath  of  secrecy,  after  this  strange  introduction,  was  asked  and  taken  ! 
Then  followed  the  communication,  of  which  an  outline  has  been  given.  Among 
other  things,  Wales  is  told  that  about  twenty  of  the  crew  (page  11,  record)  were 
engaged  in  the  conspiracy.  Spencer  had  all  the  details  of  the  plot  in  writing, 
the  paper  being  at  that  moment  concealed  in  his  neck-handkerchief. 

As  the  reader  will  examine  the  record  which  accompanies  this  review,  we  shall 
not  refer  in  terms  to  every  line  of  our  statements,  but  each  will  be  found  to  be 
verified  in  its  place.  For  the  present,  we  will  confine  ourselves  to  these  few 
facts. 

When  Captain  Mackenzie  arrested  Mr.  Spencer,  the  neck-hankerchief  was 
searched  in  vain,  but  a  paper  was  subsequently  discovered  in  a  razor-case.  A 
fac-simile  is  to  be  found  in  the  record,  pp.  129,  130.  Here  then  we  get  an 
insight,  at  once,  into  the  probabilities  of  the  extent  of  this  conspiracy.  The 
paper  contains  in  all,  thirty-two  names.  Of  these,  four  are  down  as  certain, 
ten  are  down  as  doubtful ;  eighteen  are  down  as  to  be  retained  nolens  volens. 
The  four  certain,  were  Spencer,  himself,  Andrews,  M'Kinley,  and  Wales. 
Among  the  doubtful,  it  will  be  seen  that  four  names  are  marked,  as  being  likely 
to  be  induced  to  join  the  plot,  previously  to  its  execution.  The  remainder  of 
the  doubtful,  it  is  stated  in  the  paper,  would  be  likely  to  join  when  the  vessel 
had  been  taken ;  if  not,  they  were  to  be  forced.  Of  the  eighteen  down  as  the  nolens 
volens  men  it  is  hardly  necessary  to  speak.  The  paper  itself  acquits  them  of 
anything  but  being  such  persons  as  Mr.  Spencer  wished  to  coerce.  There  is  not 
the  slightest  ground  to  be  gathered  from  the  j;<zper  itself,  that  one  of  them  knew 
anything  of  the  matter. 

Here  then  we  get  the  details  of  the  conspiracy,  as  made  out  by  its  leader,  down 
to  the  last  moment  of  his  liberty.  The  interview  with  Wales  took  place  at  night, 
just  before  the  lights  are  out  on  board  a  man-of-war.  His  own  name  was  proba- 
bly put  on  the  next  day,  or  a  few  hours  before  the  arrest,  though  the  supposi- 
tion has  been  hazarded,  among  a  multitude  of  other  absurdities  that  have  been 
.advanced  in  this  case,  that  W^ales's  name  may  have  been  set  down  before  the 
plot  was  revealed  to  him.  This  is  said  in  face  of  the  fact  that  Wales  swears  he 
had  had  no  other  conversation  on  the  subject,  and,  by  those,  too,  who  attach  im- 
portance to  the  paper.  What  is  the  document  worth  at  all,  if  names  were  set 
down  as  certain,  before  the  parties  had  been  consulted  ?  If  this  may  be  true  of 
"Wales,  it  may  also  be  true  of  Andrews  and  M'Kinley,  and  yet  no  one  on  that 
side  has  thought  of  applying  this  violent  probability  to  them! 

Taking  the  paper  as  a  guide,  this  conspiracy  is  reduced,  as  to  any  serious 
danger,  to  three  individuals,  Spencer,  Andrews,  and  M'Kinley.  Admitting  the 
most,  or  that  the  four  who  it  was  thought  would  be  induced  to  join  previously  to 
the  execution,  had  been  so  induced,  the  serious  danger  was  then  confined  to 


OF  THE  NAVAL  COURT  MARTIAL.  279 

seven  !  This,  even  admitting  it  to  be  true,  does  not  strike  us  as  a  conspiracy  to 
derange  the  propriety  of  a  man-of-war's  quarter-deck,  with  the  ringleaders  in  irons 
and  all  the  details  in  the  captain's  own  hands  !  But  we  do  not  think  the  four 
doubtful  ought  to  be  placed  anywhere  but  where  they  are  placed  on  the  paper. 
The  quick  insertion  of  Wales's  name  proves  that  Spencer  had  a  boyish  anxiety 
to  make  his  scheme  look  as  formidable  on  paper  as  possible,  and  there  can  be 
little  doubt  his  muster-roll  was  corrected  at  every  plausible  occasion.  This  was 
natural  in  itself,  as  connected  with  the  wild  romance  that  pervaded  the  whole  alleged 
project,  and  it  was  necessary,  if  this  paper  were  to  possess  any  real  usefulness. 
The  circumstance  that  Mr.  Spencer  showed  this  paper  to  some  of  his  brother 
midshipmen  who  could  not  read  Greek,  proves  the  sort  of  feeling  that  reigned  in 
his  mind,  as  respects  this  document,  which  he  evidently  regarded  as  boys  are  apt 
to  regard  things  which  first  seem  to  connect  them  with 'active  life.  Doubtless  he 
was  correcting  and  making  annotations,  quite  as  fast  as  the  facts  would  at  all 
justify.  There  is  nothing  to  show  the  contrary,  while  there  is  much  to  prove 
the  fact  was  so.  Wales  swears  he  was  told  the  whole  thing  was  down  on  this  very 
paper,  and  the  presence  of  his  own  name  speaks  all  that  is  necessary.  Mr.  Til- 
lotson,  p.  170  record,  proves  that  Mr.  Spencer  was  writing  on  this  paper  down  to 
the  day  before  his  arrest.  Even  Captain  Mackenzie,  in  his  report,  p.  195,  left 
column  near  the  bottom,  says  he  was  writing  on  a  paper  on  the  26th. 

Then  Spencer  had  told  Wales  that  about  twenty  of  the  crew  were  concerned 
in  the  plot.  It  is  a  melancholy  proof  of  the  character  of  the  mind  which  sat  in 
judgment  on  these  proceedings,  that  Captain  Mackenzie,  in  a  letter  formally  sub- 
mitted to  the  court  of  inquiry,  says:  "  I  believed  then  in  the  existence  of  a  plot 
in  which,  by  the  declaration  of  Mr.  Spencer,  at  least  twenty  of  the  crew  were 
concerned." 

Were  the  same  proposition  submitted  to  a  million  of  men,  it  would  be  difficult 
to  find  one,  that  would  not  have  substituted  at  most  for  Captain  Mackenzie's  "  at 
least."  Who,  before,  ever  heard  of  a  conspirator's  giving  the  minimum  instead 
of  the  maximum  of  his  force  to  one  whom  he  wished  to  enlist  in  his  enterprise  ? 
We  deem  this  instance  of  the  reasoning  powers  of  Captain  Mackenzie  important 
tOA^he  issue,  inasmuch  as  we  think  it  will  be  shown,  as  we  proceed,  that  such  is 
tjie  habit  of  his  mind.  We  go  farther  ;  we  ascribe  the  great  calamity  that  has 
befallen  us,  if  it  be  a  calamity  to  have  a  deep  reproach  rest  on  the  justice  and 
principles  of  a  country,  to  be  owing  to  a  disposition  in  Captain  Mackenzie  to 
regard  things  as  he  has  at  first  conceived  them  to  be,  and  to  act  under  his 
convictions,  rather  than  under  the  authority  of  evidence. 

It  was  under  the  testimony  contained  in  the  revelations  of  Wales,  that  Mr. 
Spencer  was  arrested.  In  arresting  this  young  officer  Captain  Mackenzie  did  no 
more  than  his  duty,  though  the  manner  of  the  arrest  was  a  little  too  melo-dramatic 
for  the  practice  of  a  man-of-war.  The  manner  is  related  in  the  testimony  of 
Wales,  and  in  that  of  other  witnesses.  It  is  also  to  be  found  in  Captain  Mac- 
kenzie's report.  Apart  from  the  exaggeration  of  the  appeal,  we  think  it  was 
unwise  to  arrest  Mr.  Spencer  in  so  public  a  manner,  and  then  to  place  him  on 
the  quarter-deck,  in  full  view  of  the  crew.  We  entertain  no  doubt  that  much 
the  greater  portion  of  the  ominous  conversations,  groupings,  shakings  of  the 
head,  and  strange  looks,  which  seern  to  have  awakened  so  much  distrust  aft, 
had  their  origin  in  the  natural  wonder  of  the  crew,  at  seeing  an  officer  in  this  novel 
situation;  and  he,  too,  not  only  a  favorite  forward,  but  one  who  was  known  to 
be  the  son  of  a  minister  of  state.  In  our  opinion,  Captain  Mackenzie  would 


280  REVIEW  OF  THE  PROCEEDINGS 

have  shown  more  judgment,  had  he  sent  for  the  young  man  into  his  cabin,  and 
by  a  conversation  endeavored  to  get  the  facts  from  him.  He  might  have  been 
ironed  there,  were  it  thought  necessary,  but  what  judge  of  human  nature  can 
suppose  that  a  man  of  forty,  possessed  of  authority,  could  not  have  got  complete 
control  of  the  feelings  of  a  lad  of  nineteen,  by  means  of  kindness  and  judicious 
representations ;  more  especially  of  one  who  manifested  the  disposition  to  re- 
pentance and  confidence  that  it  is  acknowledged  young  Spencer  manifested,  a 
day  or  two  later.  Besides,  something  was  due  to  the  official  station  of  the 
father,  to  the  rank  of  the  son,  and  to  the  extraordinary  character  of  the  evidence 
under  which  the  arrest  actually  took  place.  There  had  been  no  overt  act,  the 
whole  story  was  so  wild  and  improbable,  as  to  wear  the  appearance  of  a  mys- 
tification, and  it  rested  solely  on  the  statement  of  one  person,  which  statement 
Mr.  Spencer  had  enjoyed  no  opportunity  of  explaining,  or  refuting,  when  he 
was  ironed,  and  set  up  on  the  quarter-deck  to  be  gazed  at,  by  all  on  board. 
This  course,  too,  was  determined  on,  before  the  young  man  had  heard  his  crime  ! 

The  procedure  strikes  us  as  failing  in  judgment  on  all  points,  and  somewhat  in 
generosity.  Were  there  any  real  danger,  such  an  exhibition  would  be  apt  to 
inflame  and  excite  to  action  the  remaining  conspirators,  whereas,  the  quiet  dis- 
appearance of  the  young  man  might  have  left  them  in  some  of  that  doubt  and 
uncertainty  which  seems  to  have  been  such  a  source  of  uneasiness  aft,  as  respects 
the  conduct  of  the  crew.  There  is  nothing  more  demoralizing  than  doubt,  or 
nothing  more  apt  to  awaken  the  energies  than  certainty.  We  feel  great  difficulty 
in  believing  that  Captain  Mackenzie  would  have  pursued  a  similar  course,  had 
one  of  those  connected  with  him  "by  blood  or  alliance"  been  accused  by  such 
a  narrative  as  that  of  Wales. 

After  the  arrest  of  Mr.  Spencer,  nearly  twenty-four  hours  passed  without  the 
occurrence  of  any  event  to  awaken  new  distrusts.  The  men  collected  in  knots, 
it  is  said,  and  conversed  together,  separating  as  the  officers  approached,  and 
would  look  aft  at  the  prisoner  seated  on  the  arm-chest.  These  facts  have  been 
dwelt  on  by  some  commentators,  in  a  way  we  think,  to  show  they  were  striving 
after  evidence  of  danger,  rather  than  after  sober  truth.  The  Somers  had  one 
hundred  and  twenty  souls  on  board  her, — at  least  thirty  more  than  she  should  have 
had — and  it  is  scarcely  possible  that,  with  her  boats  stowed,  and  one  third  of 
the  deck  reserved  for  her  officers,  one  hundred  men  could  be  on  her  remaining 
deck,  without  being  in  what  is  called  knots.  The  size  of  the  Somers  becomes 
truly  of  moment,  in  estimating  the  importance  of  such  a  circumstance.  Then,  as 
to  the  men's  separating  as  an  officer  approached,  is  it  not  usually  done  in  a  vessel- 
of-war  ?  Men  may  collect,  and  converse  with  an  officer  stationary  among  them ;. 
his  pleasure  is  known,  and  he  is  understood  to  allow  it ;  but  nine  times  in  ten,  as 
he  approaches,  they  open  to  learn  what  he  wants.  This  is  so  usual  a  thing  in  a 
vessel,  that  we  are  surprised  to  see  any  stress  laid  on  it.  But  admitting  it  were 
not,  is  there  anything  extraordinary  in  a  man's  looking  aft,  at  an  officer  set  up  in 
double  irons  on  the  quarter-deck,  and  in  canvassing  the  cause — his  innocence  or 
guilt — or  in  ceasing  to  utter  their  opinions  in  the  ear  of  an  officer?  We  should 
have  considered  a  contrary  course  as  affording  much  the  strongest  proofs  of  a 
conspiracy,  as  it  would  have  been  substituting  something  like  a  concerted  self- 
denial  for  a  very  natural  indulgence.  Those  who  really  had  anything  to  conceal, 
at  such  a  moment,  would  be  very  apt  to  act  with  caution.  Even  the  advocates 
of  Captain  Mackenzie  dwelt  on  the  fact  that  Cromwell  assumed  an  indifferent 
air,  and  affected  not  to  enter  into  the  feelings  of  those  around  him,  as  a  proof  of 


OF  THE  NAVAL  COURT  MARTIAL.  281 

artifice,  by  not  yielding  to  this  natural  impulse.  In  his  case  they  overlook  the 
admitted  facts  that  he  was  a  stern  man,  had  some  education,  was  acting  as  boat- 
swain, and  would  have  been  departing  from  the  practice  of  such  men  by  indul- 
ging- too  much  curiosity,  in  order  to  drag  in  an  inference  against  him. 

The  turning  point  of  the  danger,  according  to  Captain  Mackenzie's  account  of 
the  matter,  and  according  to  the  drift  of  his  defence,  was  the  carrying  away  of 
the  main-royal-mast.  Previously  to  this  accident,  however,  the  men  were  inspect- 
ed at  quarters,  it  being  Sunday,  November  27.  This  inspection  took  place  at  10 
o'clock  in  the  morning.  It  will  be  seen,  on  referring  to  the  testimony  of  Wales, 
that  Small,  the  seaman,  was  directly  connected  with  the  plan  of  Mr.  Spencer, 
having  communicated  with  the  latter  on  the  subject  during  the  time  he  (Wales) 
was  on  the  booms,  and  in  his  presence.  Now,  under  the  circumstances,  it  ap- 
pears to  us  that  Small  would  naturally  have  been  the  principal  subject  of  Captain 
Mackenzie's  suspicions.  For  some  unexplained  reason — unexplained,  unless  the 
facts  that  he  was  a  strong,  determined  man,  and  intelligent  for  his  station,  and  the 
circumstance  that  Spencer  had  been  known  to  give  him  some  money,  be  deemed 
a  sufficient  explanation — this  gentleman  fastened  his  eye  on  Cromwell,  the  acting 
boatswain,  as  one  of  the  principal  objects  of  his  distrust.  In  his  report  Captain 
Mackenzie  gives  this  extraordinary  specimen  of  his  own  reasoning  powers,  as 
connected  with  the  appearance  of  Cromwell  and  Small  at  this  Sunday  inspection, 
viz.  :  "  The  persons  of  both  were  faultlessly  neat.  They  were  determined  that 
their  appearance  in  this  respect  should  provoke  no  reproof.  Cromwell  stood  up 
to  his  full  stature,  his  muscles  braced,  his  battle-axe  grasped  resolutely,  his  check 
pale,  but  his  eye  fixed  indifferently  at  the  other  side.  HE  HAD  A  DETERMINED 

AND  DANGEROUS  AIR.     .  SMALL    MADE    A  DIFFERENT    FIGURE.       His  appearance 

was  ghastly  ;  he  shifted  his  weight  from  side  to  side,  and  his  battle-axe  passed  from 
one  hand  to  the  other,  his  eye  wandering  irresolutely,  but  never  toward  mine," 
&c.,  &c.  See  Rec.  p.  198. 

Here,  then,  were  two  men  who  manifested  guilt,  according  to  Captain  Mac- 
kenzie, by  directly  contrary  deportment.  In  order  to  escape  his  distrust,  a  man 
must  be  neither  firm  nor  irresolute ;  look  frightened,  nor  look  determined  ;  hold 
his  battle-axe  quiet,  nor  pass  it  from  hand  to  hand  ;  stand  erect  with  his  muscles 
immovable,  nor  shift  his  weight  from  leg  to  leg;  look  steadily,  but  indifferently, 
across  the  deck,  nor  let  his  eyes  wander,  without  looking,  however,  at  mine! 
Evidence  like  this,  of  the  judgment  that  was  brought  to  bear  on  this  important 
case,  awakens  reflections  of  the  most  painful  character.  If  to  what  has  been 
shown,  it  be  added  that  men  are  required  to  be  faultlessly  neat  at  Sunday  mus- 
ters, or  Sunday  inspections,  on  the  pain  of  punishment,  the  picture  will  be  com- 
plete. 

Next  comes  the  affair  of  the  mast :  The  spar  was  carried  away  in  the  top-gal- 
lant sheeve-hole,  in  the  afternoon  of  the  same  day — or  Sunday  the  27th.  Capt. 
Mackenzie  says  it  was  done  in  consequence  of  "  a  sudden  jerk  given  by  Small, 
and  another  whose  name  I  have  not  discovered."  It  may  be  necessary  to  explain 
to  the  landsman  how  this  loss  is  supposed  to  have  happened. 

The  Somers  was  a  brig,  a  craft  in  which  all  the  after-braces  lead  forward. 
Braces  are  ropes  that  are  fastened  to  the  two  ends  of  the  yards,  and  which  are 
used  to  pull  the  yards  round,  to  keep  them  steady  at  any  desired  angle  to  the 
wind,  and,  when  they  lead  aft,  to  help  support  the  yards.  These  braces  must  lead 
to  some  point  that  is  pretty  nearly  on  a  level  with  their  yards,  or  they  could  not 
well  be  worked,  nor  would  they  be  of  much  support.  A  brig  having  no  mast 

36 


282  REVIEW  OF  THE  PROCEEDINGS 

abaft  the  mainmast,  her  after-braces,  preventers  excepted,  lead  to  the  foremast, 
while  her  forward-braces  lead  to  the  mainmast,  or  to  objects  attached  to  these  masts 
respectively.  It  is  evident,  therefore,  that  any  strain  on  the  forward-braces,  of  brig 
or  ship,  helps  to  support  the  yard,  as  this  strain  is  against  the  direction  of  the 
wind  ;  whereas  a  strain  on  the  after-braces  of  a  brig  lessens  the  support,  since  it 
pulls  in  the  direction  of  the  wind.  The  same  is  true  of  all  the  mizen-braces  of  a 
ship  which  lead  forward  to  the  mainmast.  Now  Captain  Mackenzie  attributes  the 
loss  of  his  main-royal-mast  to  the  fact  that  Small  gave  the  brace  a  sudden  jerk, 
the  brace  leading  forward,  and  pulling  in  the  direction  of  the  wind,  as  described. 

Captain  Mackenzie  says  :  "I  did  not  dream  at  the  time  that  the  carrying  away 
of  this  mast  was  the  work  of  treachery ;"  but  as  he  knew  that  moments  of  con- 
fusion were  those  in  which  conspirators  would  be  likely  to  act,  he  used  the  pre- 
caution to  see  that  the  work  of  repairing  damages  should  be  conducted  deliberately 
and  without  confusion.  "To  my  astonishment,"  he  goes  on  to  say,  "all  those 
who  were  most  conspicuously  named  in  the  programme  of  Mr.  Spencer  [meaning 
the  papers  in  Greek  characters],  no  matter  in  what  part  of  the  vessel  they  might 
be  stationed,  mustered  at  the  main-top-mast-head;  whether  animated  by  some  new- 
born zeal  in  the  service  of  their  country,  or  collected  there  for  the  purpose  of 
conspiring,  it  may  not  be  easy  to  decide.  THE  COINCIDENCE  CONFIRMED  THE 
EXISTENCE  OF  A  DANGEROUS  CONSPIRACY,  suspended,  yet  perhaps  not  aban- 
doned." 

As  we  proceed,  we  shall  here  note  another  instance  of  the  peculiar  character 
of  Captain  Mackenzie's  mind — the  fact  that  all  those  most  conspicuously  named 
in  the  muster-roll  of  Mr.  Spencer  being  assembled  at  the  mast-head  on  this  occa- 
sion was  CONFIRMATION  of  the  dangerous  character  of  the  mutiny. 

In  the  first  place,  the  inference  is  very  remarkable  for  the  premises.  Cromwell 
was  acting  boatswain,  and  there  is  nothing  surprising  that  he  should  go  aloft,  on 
an  occasion  like  this,  in  a  vessel  with  the  peculiar  crew  of  the  Somers.  Had  he 
remained  below,  no  doubt  it  would  have  been  deemed  a  confirmation  of  the  sus- 
picion that  he  stayed  on  deck  to  profit  by  circumstances  in  the  way  of  seizing  the 
vessel.  Anything  may  be  tortured  into  proof,  when  men  reason  in  this  mode. 
As  for  Small,  he  was  a  captain  of  the  main-top,  and  if  any  one  was  to  go  aloft, 
he  clearly  ought  to  have  been  there.  Several  mention  that  Golderman  was  one 
of  those  aloft.  Cromwell,  Small,  Wilson,  and  Golderman,  are  the  names  most 
prominently  given.  Now  the  name  of  neither  Cromwell  nor  Golderman  appears 
on  Mr.  Spencer's  programme  at  all !  We  know  it  is  contended  that  the  name  of 
Andrews — there  being  no  such  person  in  the  brig — was  an  alias  for  Cromwell ; 
but  it  might  just  as  reasonably  be  affirmed  that  it  was  an  alias  for  any  one  of  the 
officers,  as  to  assert  this  without  proof.  To  sustain  a  point  by  laying  down  cer- 
tain things  as  possible,  and  then  to  demonstrate  one  possibility  by  another,  is,  to 
say  the  least,  an  exceedingly  loose  manner  of  getting  at  facts  in  a  case  of  life  and 
death.  At  the  proper  time  we  shall  show  that,  according  to  all  the  reasonable 
probabilities,  Andrews  did  not  stand  for  Cromwell. 

Nor  is  this  all ;  Anderson,  the  captain  of  the  forecastle,  was  one  of  those  aloft. 
Now  this  man  so  far  possessed  the  confidence  of  Captain  Mackenzie,  that  he  was 
armed  at  the  execution.  The  inference  of  Captain  Mackenzie  is,  that  certain 
individuals  went  aloft  on  this  occasion  to  conspire:  had  he  said  to  show  supererog- 
atory zeal  and  activity,  in  order  to  conceal  their  guilt,  there  might  have  been  a 
show  of  plausibility  in  the  conjecture;  but  in  the  aspect  in  which  this  gentleman 
presents  the  occurrence,  it  strikes  us  as  being  singularly  distorted.  So  long  as 


OF  THE  NAVAL  COURT  MARTIAL. 


one  individual  was  among  them  who  was  not  in  their  secret,  how  could  men  con- 
spire, without  betraying  themselves,  on  the  cross-trees  of  a  brig,  or  in  her  top-mast 
rigging!  Unlessthey  went  aloft  with  the  purpose  attributed,  the  whole  conjecture 
fails.  And  would  men  be  apt  to  go  to  a  place  where  the  chances  were  as  twenty 
to  one  they  could  not  be  alone,  with  such  an  object?  Anderson  we  have  named 
as  being  aloft,  and  not  in  the  conspiracy,  and  there  might  have  been  others,  but 
the  witnesses  have  mentioned  those  who  were  suspected,  rather  than  those  who 
were  not.  There  were  others  ;  Gedney  was  there,  and  no  one  seems  to  suspect 
him ;  the  boy  Gagely  must  have  been  there,  too,  and  he  is  spoken  of  in  favorable 
terms.  The  fact  of  Anderson's  presence  came  out  incidentally,  and  not  directly. 
But  Golderman  was  aloft,  and  his  name  is  not  in  the  programme  at  all.  To  give 
the  coup  de  grace  to  this  conjecture,  who  can  imagine  men  would  select  a  spot 
which,  just  at  the  moment,  was  the  point  of  general  observation,  as  the  scene  of 
a  conspiracy  ?  It  strikes  us  that  men  whose  duly  did  not  call  them  aloft,  would 
have  chosen  a  less  public  place. 

Captain  Mackenzie  adds,  in  connexion  with  this  point,  and  as  a  matter  of  mo- 
ment :  "  The  eye  of  Mr.  Spencer  travelled  perpetually  to  the  mast-head,  and  cast 
thither  many  of  those  strange  and  stealthy  glances  which  I  had  heretofore  noticed." 
This  is  not  the  least  extraordinary  of  the  very  extraordinary  reasoning  that  per- 
vades the  whole  of  the  case.  Nothing  is  more  apparent  than  the  fact,  that  Captain 
Mackenzie,  in  his  report,  intended  to  favor  the  world  with  a  fine  and  memorable 
description,  one  that  should  be  quoted  in  after  ages  for  its  thrilling  incidents  and 
graphic  beauty.  This  is  seen  in  his  details,  which  would  be  the  height  of  pueril- 
ity without  this  conclusion,  and  which  are  not  much  better  with  it.  To  this  ill- 
directed  literary  ambition  we  attribute  the  "strange"  and  "stealthy,"  aided  a 
little,  perhaps,  by  a  natural  cast  in  one  of  Mr.  Spencer's  eyes.  But  passing  over 
these  comic  exhibitions  of  weakness,  which  might  be  smiled  at  but  for  their  tragic 
connexion,  can  anything  be  more  violent  than  the  inference  as  to  Mr.  Spencer's 
motive?  He  was  at  sea,  seated  on  an  arm-chest,  in  irons,  with  nothing  to  do, 
and  nothing  but  the  vacant  ocean  to  gaze  at  outward,  and  that  only  by  "stealthy" 
glances,  as  the  brig  lifted  or  fell.  A  mast  is  carried  away  in  full  view  of  him, 
and  it  is  thought  extraordinary  that  he  sought  the  very  natural  relief  of  gazing  at 
what  was  going  on  at  the  main-top-mast-head !  It  is  probable  there  was  not  a 
man  on  deck  who  did  not  cast  "  many  strange  and  stealthy  glances"  aloft  on  this 
memorable  occasion,  and  who  might  have  cast  more,  had  he  not  been  otherwise 
occupied.  We  confess,  had  not  Mr.  Spencer  looked  aloft,  we  should  have  thought 
it  so  little  in  conformity  with  what  one  might  expect,  as  to  feel  an  inclination  to 
distrust  some  deception  in  his  conduct. 

While  on  this  point,  we  shall  pursue  this  affair  of  the  mast.  By  examining 
the  testimony  before  the  court,  it  will  be  seen  the  idea  prevailed,  that  the  mast 
was  carried  away  by  design,  the  ingenious  theory  that  was  set  up  in  this  connex- 
ion going  on  to  maintain  that  Cromwell  instigated  Small  lo  jerk  the  brace,  the 
object  being  to  throw  the  boy  overboard,  and  then,  when  some  of  the  most  active 
and  loyal  of  the  crew  were  absent  in  a  boat,  and  the  vessel  was  in  confusion,  to 
rise  and  seize  the  brig.  Captain  Mackenzie  admits  in  his  report  that  he  did  not 
dream  of  treachery  at  the  time,  a  circumstance  which  is  sufficiently  established  by 
the  testimony,  page  171,  where  it  will  be  seen  he  sharply  reproved  his  nephew, 
Mr.  O.  H.  Perry,  for  not  attending  properly  to  his  duty  on  this  occasion.  But 
the  most  superficial  examination  will  show  the  feebleness  of  all  this  theory  of 
"  treachery."  The  points  attempted  to  be  established  are  as  follows  : — 


REVIEW  OF  THE  PROCEEDINGS 


Cromwell  instigated  Small  to  jerk  the  brace  ;  an  order  existed  never  to  jerk  or 
pull  upon  the  light  braces  which  lead  forward  ;  Small  belonged  aft,  and  was  never 
known  to  do  duty  forward  before;  the  moment  would  have  been  favorable  for 
the  purpose  of  the  mutineers. 

Now,  we  deny  the  reasoning  as  connected  with  every  one  of  these  propositions. 
As  for  the  first,  it  is  a  fact,  and  was  only  to  be  established  by  direct  affirmative 
evidence.  The  attempt  completely  failed — so  completely,  as  almost  to  establish 
the  negative.  (See  record,  pp.  97,  98,  99,  100.)  As  for  the  second,  it  is  proved 
that  jMr.  O.  H.  Perry  said  he  told  Capt.  Mackenzie  he  understood  the  order  was 
to  '''•haul  on  the  brace,"  though,  when  cross-examined  by  the  commander  him- 
self, he  says  he  understood  it  was  an  order  for  "a  small  pull"  &c.  (see  record, 
p.  173),  and  that  Captain  Mackenzie  publicly  reproved  him  for  his  conduct.  The 
third  comes  more  within  the  category  of  a  mental  effort.  As  Small  belonged  aft, 
it  was  extraordinary  he  should  pull  upon  a  main-royal-brace.  By  referring  to  the 
evidence,  it  will  be  seen  that  Small  was  seated  on  the  bitts  forward,  probably 
within  five  feet  of  the  spot  where  the  brace  was  belayed,  possibly  within  two  or 
three.  A  boy  was  actually  on  the  royal-yard,  and  an  officer  calls  out,  if  you  will, 
u  to  pull  on  the  main-royal-brace,"  the  object  being  to  "steady  "  the  yard  while  the 
boy  was  on  it.  A  main-top-man  is  seated  nearest  the  brace — he  knows  the  ob- 
ject— knows  what  is  to  be  done,  ought  to  be  done,  at  once — it  is  light  work,  and 
who  will  say  he  ought  to  hesitate?  Nine  men  in  ten,  on  board  of  any  ship,  simi- 
larly situated,  would  have  sprung  to  the  brace.  The  circumstance  that  Small 
belonged  aft,  and  never  had  hauled  on  a  brace  forward  before,  explains  the  reason 
why  he  might  have  exerted  his  strength,  or  weight  (for  that  is  the  power  used  on 
a  rope  that  leads  up  and  down),  on  this  main-royal-brace.  The  braces  which  led 
aft  were  hauled  upon,  and  he  may  very  well  have  acted  under  a  habit.  Then 
Small  is  described  as  the  shortest  man  in  the  brig,  and  small  men  are  apt  to  throw 
their  weight  upon  light  work.  It  is  a  natural  resource  of  their  means.  As  for  the 
order  itself,  it  is  disputed;  the  witnesses  of  Capt.  Mackenzie  do  not  agree,  any  more 
than  those  for  the  prosecution.  Next,  the  moment  would  not  have  been  favorable,  nor 
does  it  come  within  the  bounds  of  any  plausible  possibility  that  it  could  have  been 
seized  by  the  mutineers.  The  order  emanated  from  the  mind  of  the  officer  of  the 
deck,  and  could  not  have  been  anticipated.  It  follows  there  was  no  time  for  pre- 
meditation. The  plot,  if  plot  there  was,  must  have  been  concocted  between  the 
moment  when  Mr.  Hays  first  spoke  and  the  pull  on  the  brace.  How  long  a  pe- 
riod would  this  be  on  board  a  small  brig-of-war?  Ten  seconds  would  be  a  large 
allowance  ;  it  might  have  been  all  over  in  five.  It  probably  was  in  six  or  seven. 
Here,  then,  we  are  to  make  the  violent  supposition,  that  Small,  in  six  or  seven 
seconds,  conceived  and  executed  this  design,  his  body  in  active  physical  exertion 
the  whole  time  !  The  supposition  strikes  us  as  singularly  absurd.  It  would  have 
been  far  more  rational  to  have  thought,  as  Small  was  known  to  be  uneasy  and 
nervous,  now  standing  on  one  leg,  now  on  the  other,  that  nervous  excitement,  and 
a  desire  to  manifest  unusual  zeal,  had  led  him  to  do  more  than  his  duty. 

There  is  an  unanswerable  objection  to  the  scheme,  however,  in  the  fact  that  a 
dozen  much  easier  of  execution  and  more  likely  to  succeed,  presented  themselves. 
For  this  contingency  the  mutineers,  in  the  nature  of  things,  could  not  have  been 
prepared,  whereas  Cromwell,  if  so  disposed,  might  have  prepared  his  men,  thrown 
a  boy  overboard  in  the  dark,  given  the  alarm,  and  then  executed  his  purpose, 
taking  care  that  none  of  his  own  dependants  should  go  in  the  boat.  A  billet  of 
wood,  in  the  dark,  might  have  served  as  well  as  a  boy,  or  fifty  expedients  of  this 

V 


OF  THE  NAVAL  COURT  MARTIAL. 


nature  been  adopted,  every  one  of  which  would  have  been  better  than  this  of  the 
royal-yard.  It  might  be  added  that  a  boy  on  a  royal-yard,  in  a  vessel  going  large 
in  the  trades,  would  fall  inboard,  and  not  outboard,  nineteen  times  in  twenty  ;  and, 
that  a  boy,  so  situated,  especially  on  a  raking  mast,  nine  times  in  ten,  would  not 
come  down  at  all.  He  would  save  himself  by  the  rigging  and  the  sail,  as  this  boy 
actually  did.  Now,  all  these  things  are  as  familiar  to  seamen,  as  the  figures  of  a 
quadrille  to  a  young  lady,  and  he  would  be  as  apt  to  reason  and  act  on  them,  as 
any  one  on  shore  would  act  and  reason  on  his  most  familiar  habits.  It  appears  to 
us,  that  there  is  nothing  connected  with  this  affair  of  the  mast,  to  justify  any  part 
of  Captain  Mackenzie's  reasoning.  Nor  is  it  clear  the  jerk  did  carry  away  the 
mast  at  all,  though  the  strain  of  a  taut  brace  might  have  been  the  feather  to  break 
the  camel's  back.  We  shall  allude  to  this  point  again. 

We  pass  next  to  the  necessity  of  the  execution,  on  the  supposition  of  the  guilt 
of  all  the  parties,  intending  to  consider  the  last  point,  at  the  conclusion  of  our 
analysis  of  the  facts.  In  estimating  this  necessity,  we  intend  to  give  Captain  Mac- 
kenzie the  full  benefit  of  that  which  we  conceive  to  be  the  true  issue,  or  of  the 
justifiable  belief,  at  the  time,  of  the  existence  of  this  necessity.  Nothing  would  be 
easier  than  to  show,  now,  that  this  necessity  was  imagined  ;  the  evidence  all  tend- 
ing to  prove  that  the  conspiracy,  so  far  as  it  existed  at  all,  had  no  great  extent. 
The  question  then  is,  how  far  the  facts,  as  they  were  offered  to  Captain  Mackenzie, 
at  the  time,  JUSTIFIED  him  in  believing  in  the  necessity  of  these  executions.  There 
can  be  little  doubt,  if  this  point  of  his  defence  can  be  made  out,  this  gentleman 
must  be  acquitted  before  God  and  man.  We  consider,  however,  the  guilt  of  the 
parties  indispensable  to  this  necessity. 

It  may  be  well  to  remind  the  reader  of  two  facts  before  we  proceed  to  details. 
Much  of  the  evidence  on  which  this  necessity  is  to  be  proved  is  matter  of  opinion; 
dependant  on  signs  and  symptoms  that  it  is  contended  were  sufficiently  apparent 
to  the  eyewitnesses,  but  which  it  is  difficult  to  impress  on  the  public  with  its  due 
weight  and  gravity.  The  other  fact  is  the  very  material  circumstance  that  the 
most  important  of  these  witnesses  were  as  guilty,  in  the  eye  of  the  law,  as  Cap- 
tain Mackenzie  himself,  if  the  latter  were  guilty  at  all  ;  having  been  aiding  and 
abetting  in  the  whole  transaction — accessaries  before  the  fact.  The  first  of  these 
facts  is  entitled  to  its  consideration  on  the  one  side,  as  is  the  last  on  the  other.  It 
is  very  possible  that  signs  of  disaffection  may  have  existed  in  reality,  that  can 
not  well  be  brought  home  to  the  minds  of  those  who  did  not  see  them;  still, 
it  must  be  remembered  that  those  on  board  the  brig  may  also  have  been  so  dis- 
trustful as  to  exaggerate  the  proofs  of  danger,  and  to  see  grounds  of  alarm  where 
none  really  existed.  As  we  shall  presently  show  that  Captain  Mackenzie,  by  his 
own  subsequent  course,  has  left  the  public  justly  to  infer  that  he  can  not  make 
out  the  guilt  of  those  whom  he  brought  in  as  prisoners,  and  those  arrested  in  port, 
it  leaves  a  strong  probability  that  he  and  his  officers  did  exaggerate  this  dan-cr. 

As  respects  the  connexion  of  so  many  of  the  witnesses,  with  the  guilt  or  in- 
nocence of  their  commander,  something  may  be  said  on  both  sides.  In  the 
first  place,  it  is  not  easy  to  suppose  any  malice  on  the  part  of  the  junior  officers 
of  the  Somers  against  those  executed,  and  certainly  nothing  was  to  be  gained  by 
hanging  them.  We  are  not  to  look  for  any  interested  motive,  then,  by  way  of 
explanation.  The  situation  of  the  parties  was  peculiar,  and  it  ought  not  to  be 
forgotten  that,  in  the  clearest  cases  of  guilt  and  danger,  these  very  persons  \\<>re 
the  only  witnesses  on  whom  Captain  Mackenzie  could,  in  the  nature  of  things, 
rely  for  the  proofs  of  his  justification.  On  the  other  hand,  it  should  be  bornu  in 


286  REVIEW  OF  THE  PROCEEDINGS 

mind  that  the  fault  of  Captain  Mackenzie,  admitting  that  he  erred,  was  probably 
one  of  judgment,  coupled  at  most  with  some  undue  pertinacity  of  opinion  ;  that 
these  witnesses  sustained  him  in  all  he  did,  and,  consequently,  that  we  are  not  to 
expect  in  a  case  of  this  gravity,  when  men  have  once  committed  themselves,  they 
will  be  altogether  as  impartial  and  candid  as  if  they  had  not.  The  distinction 
becomes  material,  when  we  remember  that  the  witnesses  were  called  on  to  testify, 
in  their  cooler  moments,  concerning  acts  committed  in  a  crisis  of  strong  feeling 
and  presumed  hazard. 

The  reader  will  better  understand  us,  if  we  refer  to  certain  points  in  the  way  of 
illustration.  Some  of  the  witnesses,  in  testifying  to  the  danger,  use  expressions 
like  this :  "  I  thought  so  then,  and  I  think  so  now  ;"  thus  identifying  their  present 
impressions,  after  every  opportunity  had  been  given  to  probe  the  conspiracy  to  the 
bottom,  without  discovering  anything,  with  their  impressions  at  sea,  when  subject 
to  all  the  risks.  Great  confidence  is  manifested,  also,  concerning  the  guilt  of 
Cromwell,  as  well  as  that  of  other  individuals,  who  were  brought  in,  in  irons,  a 
guilt  which  is  inseparably  connected  with  the  danger,  and  yet  the  survivors  have 
not  even  been  tried,  unquestionably  because  they  can  not  be  convicted.  We  deem 
this  adherence  to  so  much  positiveness  of  opinion,  under  the  circumstances,  to  be 
a  consequence  of  the  connexion  of  the  witnesses  with  the  transaction  itself,  and, 
without  wishing  to  attribute  to  any  one  of  them  a  deliberate  design  to  invent,  or 
even  to  conceal  the  truth,  we  think  it  scarcely  human  that  they  should  not,  in  mat- 
ters of  opinion  at  least,  and  perhaps  unconsciously  to  themselves,  sometimes  color 
it.  What  we  mean,  therefore,  is  simply,  that  while  we  should  regard  it  as  ex- 
tremely unfair  to  view  these  persons  as  men  who  were  testifying  in  behalf  of  a 
partner  in  ordinary  guilt,  we  deem  it  unwise  to  consider  them  as  totally  disinter- 
ested. Their  own  characters,  as  men  of  prudence,  clear-sightedness,  and  moral 
firmness,  are  unavoidably  connected  with  the  issue.  Unless  it  be  assumed  men 
never  fail  in  these  qualities,  the  considerations  just  mentioned  must  be  entitled  to  a 
good  deal  of  weight. 

It  will  probably  be  said,  it  is  a  strong  circumstance  in  favor  of  Captain  Macken- 
zie, that  all  his  officers  coincided  in  opinion  on  the  subject  of  the  necessity  for  the 
executions.  Under  ordinary  circumstances,  there  would  be  great  force  in  this 
argument ;  there  is  some,  though  we  think  much  less,  under  those  which  actually 
existed.  Had  the  Somers  been  an  ordinary  vessel-of-war,  the  officers  would  have 
been  more  independent  of  their  commander,  than  happened  to  be  the  case  with 
this  brig.  She  was  sent  to  sea  with  too  much  of  the  character  of  a  family  yacht, 
to  come  within  the  usual  category  of  a  regular  cruiser.  Captain  Mackenzie  tells 
us  himself,  in  speaking  of  his  officers,  that  "two  of  them  were  connected  with 
him  by  blood,  and  two  by  alliance,  and  the  four  intrusted  to  my  special  care.'* 
Two  of  these  gentlemen,  we  understand,  were  sea- officers  who  had  charge  of 
watches,  and  the  two  others  were  witnesses  in  the  case,  though  not  of  the  council 
that  advised  the  executions.  Any  one  familiar  with  a  man-of-war,  will  at  once 
admit  the  ascendency  of  the  opinions  of  sea-officers,  in  cases  of  this  nature.  The 
purser  and  surgeon,  for  instance,  would  be  men  of  unusually  decided  characters 
to  venture  opinions  opposed  to  those  of  the  sea-officers ;  the  habits  of  command 
giving  to  each  department  of  a  ship  a  very  nearly  undisputed  sway,  within  it 
proper  sphere.  It  must  not  be  forgotten,  that  of  the  five  sea-officers  who  sign< 
the  opinion  in  favor  of  the  executions,  four  were  just  of  an  age  to  render  thei 
active  assistants  in  quelling  a  physical  attempt  to  seize  a  vessel,  but  to  render 
them  questionable  counsellors,  in  a  case  of  this  fearful  magnitude. 


OF  THE  NAVAL  COURT  MARTIAL.  287 

Had  the  question  of  life  and  death  been  referred,  too,  to  the  council  that  was 
convened  on  the  30th  November,  as  a  naked  proposition  to  be  decided  by  the 
unbiased  judgments  of  its  members,  on  the  facts  as  they  presented  themselves  at 
the  time,  the  opinion  given  would  carry  more  weight  with  it,  than  we  conceive 
it  entitled  to  receive,  under  the  real  state  of  the  case.  It  appears  by  the  evi- 
dence of  Mr.  M.  Perry,  and  others,  that  the  necessity  of  executing  Spencer, 
Cromwell,  and  Small,  was  discussed  among  several  of  the  officers,  as  early  as 
the  28th,  or  two  days  before  the  matter  was  referred  to  the  council,  and  three  days 
before  the  opinion  of  that  council  was  signed.  The  interval  was  abundantly 
sufficient  to  give  a  bias  to  the  opinion  of  the  quarter-deck,  most  especially 
when  that  quarter-deck  was  principally  occupied  by  very  young  men,  and  to 
have  caused  the  council  to  arrive  at  a  foregone  conclusion.  So  generally  is 
the  influence  of  military  supremacy  appreciated,  that  it  is  a  standing  law  of 
courts  martial  to  oblige  their  junior  members  to  deliver  their  opinions  first, 
commencing  with  the  youngest,  and  ascending  according  to  date  or  rank.  In 
the  civil  courts,  even,  it  is  the  rule  of  judges,  when  obliged  to  give  jurors  leave 
to  separate  before  a  case  is  finished,  to  direct  them  not  to  converse  with  each 
other,  until  the  matter  is  finally  submitted  to  their  decision.  So  tender  is  the  law 
on  this  point,  that  he  who  has  expressed  an  opinion  in  a  case  is  rejected  as  a 
juror,  and  rightfully,  inasmuch  as  he  has  to  overcome  preconceived  opinions 
before  he  can  get  to  be  even  impartial.  The  evidence  that  is  wasted  in  restoring 
the  balance  of  his  mind,  might  make  the  scale  preponderate,  had  the  beam  been 
level  when  first  received.  According  to  the  evidence,  Lieutenant  Gansevoort, 
Mr.  M.  Perry,  and  one  or  two  more  of  this  council,  would  have  been  rejected  as 
jurors,  after  the  opinions  they  had  expressed  of  the  necessity  of  hanging  the  indi- 
viduals in  question  ;  and,  while  we  do  not  say  the  necessity  of  the  case  did  not 
make  it  proper  to  consult  them,  we  do  say  that  their  opinions,  insomuch  as  they 
could  be  influenced  by  most  of  the.  testimony  taken  before  the  council,  are  entitled  to- 
much  less  weight  than  if  they  had  come  fresh  to  the  consideration  of  the  subject. 
The  same  reasoning  will  probably  apply  to  most,  if  not  to  all,  the  members  of  the 
council.  It  is  in  proof  that  three  members  of  this  council  were  of  opinion  of  the 
necessity  of  the  execution  as  early  as  the  28th  ;  it  is  scarcely  probable  these  early 
consultations  were  confined  to  these  three,  and  did  that  council  meet,  its  members 
holding  preconceived  opinions,  they  must  have  been  more  than  human,  if  their 
inquiries  were  not  quite  as  much  directed  to  obtaining  confirmation  of  what  they 
already  believed,  as  to  obtaining  the  truth.  When  this  bias  was  left  to  act  on  a 
tribunal  before  which  the  accused  had  not  even  a  hearing,  it  is  easy  to  imagine  its 
effect.  This  fact,  also,  is  of  the  last  importance  in  another  point  of  view.  All 
the  evidence  of  the  necessity  of  the  execution,  that  appears  after  the  28th,  is  thrown 
away,  as  respects  these  gentlemen,  inasmuch  as  their  minds  were  made  up  on 
previous  facts.  Then  the  character  of  the  evidence  given,  speaks  volumes  ! 

But  we  are  not  left  to  mere  conjectures  on  the  manner  how  opinion  was  formed 
on  opinion,  in  this  grave  transaction  ;  the  testimony  of  the  parties  themselves, 
removing  all  doubt.  Even  the  witnesses  before  that  council,  justify  their  own 
opinions  by  those  of  others  around  them.  We  refer  the  reader  generally  to  the 
depositions  taken  before  the  council  (p.  151  to  p.  158,  inclusive).  Anderson 
says  (p.  154)  '•  "  From  what  I  heard  from  my  shipmates,  1  suspected  they  were 
plotting  to  take  the  vessel."  This  man  pretends  to  no  knowledge  of  his  own, 
and  thought  the  vessel  in  no  danger,  at  the  time  of  the  council,  though  he  dis- 
trusted going  on  the  coast.  Stewart  says:  "I  don't  think  the  vessel  safe,  from 


1288  REVIEW  OF  THE  PROCEEDINGS 

what  I  heard  King,  the  gunner's-mate,  say"  (that  is),  "  that  he  had  heard  the  boys 
say  that  there  were  spies  about."  Henry  King  signs  a  paper,  giving  "  a  list  of 
men  whom  he  suspects  of  being  engaged  in  this  matter  now — Golderman,  Sullivan, 
and  Waltham ;  believes  that  Cromwell  was  at  the  head  of  them;  Mr.  Spencer  and 
Cromwell  were  engaged  most  of  every  fine  watch,  taking  stars;  believes  that  Small 
is  engaged,"  &c. ;  and  thus  goes  on  thinking,  suspecting,  and  believing,  to  the  end 
of  his  deposition.  Yet  this  man  is  authority  for  the  opinions  of  others  ! 

One  or  two  facts  are  mentioned  in  these  depositions,  such  as  Mr.  Spencer's 
general  intimacy  with  Cromwell  and  Small,  but  in  the  main  nothing  is  given  but 
opinions.  The  facts  will  be  noticed  when  we  come  to  consider  the  guilt  of  the 
prisoners.  Gedney's  deposition,  however,  is  worthy  of  notice.  In  the  body  of 
it,  he  says  :  "  I  heard  him  (Spencer)  say  to  Cromwell,  <  he  would  try  that,  and  if 
he  succeeded,  well  and  good,  and  if  not,  he'd  burst;'  know  that  he  had  reference 
to  a  voyage,  and  spoke  about  a  voyage  to  the  northwest  coast."  This  is  all  plain 
enough.  The  witness  deposes  Mr.  Spencer  was  talking  about  a  voyage,  and  that 
he  had  been  speaking  about  a  voyage  to  the  northwest  coast,  and  then  he  wound 
up  by  the  remark  of  his  intention  to  try  some  particular  scheme,  and  if  it  suc- 
ceeded, well  and  good  ;  if  not,  he'd  burst.  The  last  is  a  common  New  York 
expression,  which  means,  "  I'll  make  or  break."  To  this  deposition  he  swears, 
and  he  signs  it.  But  a  postscript  is  added,  in  these  words  :  "I  now  believe,  that 
when  he  (Spencer)  told  Cromwell  that  'he  would  try  that,  and  if  he  succeeded, 
well  and  good,  and  if  not,  he'd  burst,'  that  he  alluded  to  taking  this  vessel."  We 
presume  no  comment  is  required  on  such  a  deposition. 

A  more  precious  set  of  depositions  was  probably  never  flouted  in  the  face  of 
justice.  Nine  tenths  of  their  matter  would  be  rejected  in  the  loosest  court  in 
Christendom.  We  hope  they  will  be  read,  and  we  can  not  doubt  their  effect  on 
every  legal  or  logical  mind.  We  shall  have  occasion  to  revert  to  them  again,  but, 
at  present,  will  add  a  few  words  on  the  subject  of  that  of  Wales. 

In  the  first  place,  this  deposition  is  dated  November  26th,  1842,  on  the  day 
Mr.  Spencer  was  arrested.  It  may  have  been  given  as  authority  on  which  to 
ground  the  arrest,  though  that  is  a  very  novel  course  at  sea,  unless  further  unusual 
steps  are  meditated.  As  it  stands  in  the  record,  it  would  seem  not  to  have  been 
sworn  to. 

The  statement  is  generally  that  given  in  Wales's  testimony  before  the  court, 
though  it  differs  in  the  order  of  events.  In  his  testimony  before  the  court 
(p.  12),  he  says:  "Small  then  left;  Mr.  Spencer  then  made  overtures  to  me, 
by  saying,  if  1  would  join  them,  he  would  give  me  the  post  of  third  officer  on 
board."  In  the  deposition  (p.  156),  this  offer  is  made  after  Wales  had  left 
the  booms,  and  after  Mr.  Spencer  had  menaced  him  with  death  if  he  revealed 
what  had  passed  ;  it  is  the  last  thing  Mr.  Spencer  says  in  the  interview,  and 
is  answered  by  Wales's  saying  he  would  talk  with  Mr.  Spencer  on  the  sub- 
ject the  next  day.  On  the  subject  of  his  own  engagement,  Wales  says,  in 
this  deposition  or  paper,  "  He  (Spencer)  then  asked  me  if  I  would  become 
one  of  their  number ;  /  did  not  tell  him  whether  I  would  or  would  not,  but 
rather  leaned  on  his  side"  &c.,  &c. 

Now  this  paper  was  Wales's  statement  at  the  time — the  document  on  which 
the  prisoners  were  hanged,  so  far  as  he  (Wales)  was  concerned  ;  and  yet  this 
Mr.  Wales  is  put  down  as  "  certain"  on  Mr.  Spencer's  programme — is  one  of 
the  three,  beside  himself,  on  whom  this  young  man  fancied  he  could  surely 
depend.  All  this  Captain  Mackenzie  saw,  and  we  think  his  inference  should 


OF  THE  NAVAL  COURT  MARTIAL.  289 

have  been  that  men  were  set  down  as  "certain"  on  very  insufficient  grounds. 
The  offer  of  making  Wales  third  officer,  seems  to  have  been  made  under  an 
apprehension  he  was  only  half  won  over.  Why  was  this  offer  transposed,  as 
to  time,  in  the  testimony  before  the  court  ? 

We  wish  to  be  understood.  It  is  not  our  intention  to  say  Captain  Mackenzie 
ought  not  to  have  consulted  these  gentlemen  at  all.  He  had  no  other  counsellors, 
and  he  did  right  in  asking  the  opinions  of  the  officers,  before  he  took  so  grave  a 
step  as  hanging  three  Americans  without  a  trial.  This  does  not  change  the  char- 
acter of  the  advice,  however,  and  it  is  of  that  we  have  just  been  speaking. 

We  come  next  to  the  proofs  of  the  necessity.     These  proofs  have  all  the  same 
general  tendency,  though  they  are  a  little  varied  by  the  experience  of  the  differ- 
ent individuals.     All,  however,  were   founded  on  the   presumed   danger  of  a 
rescue.     This   much  was  indispensable,   as   mutineers  already  in  irons,   could 
scarcely  be  considered  objects  of  apprehension  from  any  other  cause.     It  is  true, 
the  possibility  of  the  prisoners  getting  their  hands  out  of  the  irons  is  alluded  to 
in  the  course  of  the  proceedings ;  but,  as   fastening  their  arms  at  the  elbows, 
behind  their  backs,  would  have  rendered  them  incapable  of  doing  any  harm  even 
if  out  of  irons,  it  is  to  be  presumed  they  were  not  hanged  to  avoid  this  danger. 
Mr.  M.  Perry  particularizes  his  reasons  for  believing  a  rescue  would  be  attempted; 
they  were  substantially  as  follows  :  Because  those  persons  whose  names  were  in 
the  paper  collected  in  knots,  particularly  in  sight  of  the  prisoners  ;  because  they  did 
not  obey  orders  with  the  same  alacrity  as  they  had  done  previously  to  Mr.  Spen- 
cer's arrest ;  on  account  of  the  general  disposition  of  those  whose  names  were 
found  on  the  paper  ;  the  carrying  away  of  the  mast,  and,  because,  one  night  when 
he  called  out  for  "  some  of  you,"  to  come  aft  to  haul  in  the  spanker-sheet,  a  great 
many  more  than  was  necessary,  fourteen  or  fifteen,  came  aft.     On  this  occasion, 
he  picked  out  two  or  three  to  do  the  duty,  and  told  the  rest  to  go  forward,  again, 
and  they  moved  slowly  away.     The  knots  of  men,  too,  would  apparently  change 
the  subject  of  their  discourse  as  he  approached  them.     Now,  of  these  persons, 
whose  names  were   on  the  paper,  the   only  two  known,  down  as  certain,  were 
already  in  irons.  Wales,  of  course,  is  excepted.     As  Cromwell  and  Small  were 
also  in  irons,  they  completely  cover  the  alias,  or  the  name  of  Andrews.     Wilson, 
M'Kee,  and  that  supposed  fore-lop-man,  were  also  in  irons.     This    left    but   six 
whose  names  appear  the  least  under  suspicious  circumstances,  to  be  dreaded,  as 
connected  with  the  paper.     So  far  as  the  paper  was  concerned,  or  could  be  at  all 
received  as  authority  for  apprehension,  only  two  of  these  six  belonged  to    Mr 
Spencer's  category  of  those  who  would  probably  be  induced  to  join  the  plot,  be- 
fore its  execution.     Men,  in   such  a  state  of  mind — and  if  the  paper  is  to  be 
taken  as  authority  at  all,  it  must  be  taken  on  its  own  authority — would  not  be 
apt  to  be  the  subject  of  just  alarm  after  the  plot  was  discovered,  and  the  ringlead 
ers   in  irons,  when   Mr.  Spencer  himself  contemplated  the  possibility  of  forcing 
the  remaining  six  into  his  scheme,  and  that  only  after  he  had  the  command  of 
the  vessel,  it  is  a  most  violent  supposition  to  suppose  them  very  dangerous.     As 
these  six  came  within  the  category  of  those  who  Mr.  Spencer  deemed  it  probable 
would  be  induced  to  join  before  the  execution  of  the  project,  he  had  only  to  make 
a  cross  opposite  their  names,  to  note  the  circumstance  on  his  muster-roll.     The 
promptitude  with  which  Wales's  name  was  enrolled,  might  afford  a  reasonable 
assurance  that  the  mutiny  was  no  worse  than  it  seemed  to  be,  by  the  programme, 
and  even  Captain  Mackenzie  admits  (p.  195),  that  Mr.  Spencer  passed  much 
time  on  the  day  of  his  arrest,  in  writing  on,  and  examining  a  small  piece  of 

37 


290  REVIEW  OF  THE  PROCEEDINGS 

paper,  which  he  evidently  supposes  to  have  been  one  or  both  of  those  discovered 
in  his  razor-case. 

As  for  the  collecting  in  knots,  looking  at  the  prisoners,  and  apparently  con- 
versing about  them,  and  changing  the  discourse  as  an  officer  approached,  it 
strikes  us  as  the  most  extraordinary  reason  for  apprehending  danger,  that  has 
been  given.  Had  not  the  men  done  what  was  so  very  natural,  it  might  have 
justly  created  suspicion.  To  suppose  that  a  quarter-deck  could  be  lined  with 
men  in  irons,  including  a  quarter-deck  officer  and  the  acting  boatswain  of  the 
brig,  and  the  people  forward  not  talk  about  it,  is,  in  itself,  to  suppose  the  latter  to- 
be  influenced  by  some  very  unusual  motive.  That  they  changed  their  discourse 
as  Mr.  Perry  approached  is  also  probable,  though  it  is  not  quite  so  easy  to  under- 
stand how  he  could  know  this  fact,  in  a  way  to  be  able  to  swear  to  it,  unless  able 
to  add  what  had  been  said  before  the  change  took  place.  We  understand  him 
to  say,  consequently,  that  he  thought  the  conversation  was  changed.  That  the  con- 
versation was  changed,  we  have  no  difficulty  in  believing,  as  men  are  not  apt  to- 
let  their  opinions  of  the  discipline  of  a.  vessel  be  known  to  their  officers.  It  would 
be  disrespectful,  and  insomuch  mutinous,  had  they  done  so.  But  the  subject 
of  many  of  these  conversations  has  been  distinctly  stated  by  several  of  the  wit- 
nesses among  the  crew,  and  no  harm  has  been  found  in  it  !  M'Kinley  swears 
he  overheard  the  names  read  off  the  paper  when  found,  and  that  he  told  several 
that  their  names  were  down  on  this  paper  of  Mr.  Spencer's,  he,  Mr.  Spencer, 
being  then  in  irons  on  the  quarter-deck. 

We  consider  this  testimony  as  conclusive  of  the  general  character  of  these 
conversations,  whatever  may  have  been  the  facts  in  a  few  particular  cases. 
Nevertheless,  the  officers  have  a  right  to  the  benefit  of  the  probabilities,  and  these 
we  think  altogether  against  their  reasoning.  We  apprehend  their  minds  had  taken 
a  previous  bias,  and  that  they  looked  for  confirmation  of  their  suspicions,  rather 
than  for  the  sober  truth. 

As  for  the  affair  of  the  mast,  we  deem  all  the  just  reasoning  to  be  opposed  to 
that  of  the  quarter-deck  on  this  occasion. 

The  next  point  is  the  circumstance  that  the  crew  did  not  obey  the  orders,  as 
promptly  as  before  the  arrest  of  Mr.  Spencer.  As  this  was  one  of  the  general 
arguments  in  favor  of  the  necessity  of  the  execution,  it  shall  now  be  examined. 

The  accounts  of  the  state  of  the  crew  are  not  uniform.  Mr.  Gansevoort  tells 
us  Captain  Mackenzie  remarked  that  the  ship's  company  was  in  a  state  of  good 
discipline,  when  the  existence  of  the  plot  was  first  revealed  to  him,  or,  on  the  morn- 
ing of  the  26th  November.  Several  of  the  officers  testify  that  the  discipline  fell 
off  while  the  brig  was  on  the  coast  of  Africa.  This  is  an  extraordinary  fact,  if 
true,  to  have  escaped  the  eye  of  the  commander.  The  island  of  Madeira  is 
given  by  a  good  many  of  the  witnesses  as  the  place  where  the  discipline  began 
to  fall  off,  while  others  put  it  materially  later,  and  others  treat  the  point  some- 
what lightly  altogether.  According  to  Mr.  Gansevoort's  testimony,  Captain 
Mackenzie,  himself,  must  have  belonged  to  the  latter  class.  The  discrepancies 
in  these  opinions  go  unanswerably  to  show  that  the  change  could  not  have  been 
very  marked,  and  they  leave  the  probability  that  many  if  not  most  of  these  opinions 
were  formed  after  the  revelation  of  Wales.  A  distinction  must,  be  drawn,  more- 
over, between  disaffection  and  ordinary  offences.  We  do  not  consider  thieving, 
or  even  surliness,  a  proof  that  men  were  engaged  in  a  conspiracy  to  turn  pirates. 
The  dullest  intellect  would  understand  the  necessity  of  feigning  even  unusual 
obedience,  in  the  last  case,  rather  than  awaken  suspicion  by  betraying  disaiFec- 


OF  THE  NAVAL  COURT  MARTIAL.  291 

tion.  The  conduct  attributed  to  Mr.  Spencer,  by  Captain  Mackenzie,  would  be 
the  natural  course  to  pursue  in  such  a  state  of  things.  Obsequiousness  in  face 
of  the  discipline,  discontent  and  plotting  out  of  sight. 

It  is  an  extraordinary  fact  that  no  one  was  punished  for  all  this  backwardness 
at  duty,  and  surliness!  The  Somers  was  at  Madeira,  October  6th,  and  the 
revelation  of  Wales  took  place  on  the  26th  November ;  yet  no  one  was  brought 
up  for  misbehavior,  on  this  point,  in  these  fifty-two  days  !  There  was  abundance 
of  flogging,  but  it  was  for  stealing,  fighting,  and  ordinary  offences. 

One  of  these  punishments  is  worthy  of  being  noted.  A  negro,  named  Wal- 
tham,  was  flogged  for  stealing,  on  the  complaint  of  M'Kinley.  The  theft  was 
not  from  M'Kinley,  but  from  the  officers.  Now  M'Kinley  was  one  of  Capt.  Mac- 
kenzie's "favorite  aversions."  He  was  down  on  the  list  as  certain,  and  Captain 
Mackenzie  speaks  of  him  as  one  so  sagacious  as  to  predict  he  would  have  gotten 
rid  of  Mr.  Spencer  and  Cromwell,  and  commanded  the  brig,  in  the  event  of  her 
having  been  turned  into  a  pirate.  Waltham  was  a  nolens-volens  man,  and  of  course 
to  be  propitiated,  if  the  programme  had  any  real  virtue  in  it.  Waltham,  more- 
over, was  a  decidedly  suspected  man.  The  judge  advocate  asks  Mr.  M.  Perry 
(p.  78  record)  if  he  knew  who  reported  Waltham  the  last  time  he  was  flogged 
for  stealing,  or  on  the  29th  November,  only  two  days  before  the  executions,  and 
after  Cromwell's  arrest.  Mr.  Perry  thinks  it  was  M'Kinley;  whereupon  this 
question  was  put,  viz. : — 

"  After  this  report  of  M'Kinley,  did  you  believe  he  and  Waltham  were  ac- 
complices together  with  Mr.  Spencer  ?" 

The  answer  is — "  I  did  sir;  that  being  a  particular  reason  for  thinking  so" 

Here,  then,  Mr.  Perry  thinks  the  fact,  that  M'Kinley  got  Waltham  flogged  with 
a  cat-o'nine-tails,  a  particular  reason  for  believing  they  were  accomplices  in  this 
mutiny.  This  is  important  testimony,  as  showing  the  value  of  those  opinions  on 
which  so  much  stress  is  laid.  The  reason  is  so  particular,  that  ordinary  minds 
can  not  readily  grasp  it.  We  suppose,  however,  that  the  young  gentleman  meant 
this  :  M'Kinley  was  so  artful,  as  to  imagine  it  might  conceal  his  agency  in  the 
plot,  if  he  got  a  suspected  accomplice  flogged,  and  that  accomplice  was  sufficient- 
ly complaisant  to  submit  to  the  operation  !  Well,  admitting  all  this  extraordinary 
finesse  to  have  existed,  would  not  minds  so  acute,  and  bodies  so  insensible,  have 
been  sagacious  enough  and  steady  enough  to  avoid  betraying  disaffection  in  their 
ordinary  conduct? 

Wre  wish  the  reader  to  run  over  the  whole  of  Mr.  Perry's  cross-examination, 
particularly  from  page  69  to  page  75.  It  will  give  him  a  tolerably  good  idea  of 
the  value  of  the  opinions  that  existed  in  the  Somers  at  that  grave  moment.  This 
witness  and  others  speak  of  the  exhaustion  of  the  officers,  as  a  reason  for  the  ne- 
cessity of  the  execution.  Thirty-six  hours  seems  to  be  the  favorite  period  of  the 
duration  of  their  powers.  This  is  inferring  great  homogenousness  of  constitution, 
one  man  usually  holding  out  longer,  under  circumstances  of  trial,  than  another. 
What  was  there  to  cause  all  this  exhaustion  V  These  gentlemen  were  in  watch 
and  watch  ;  so  are  thousands  of  others  daily.  We  have  ourselves,  at  a  tender 
age  too,  been  watch  and  watch  for  weeks  and  weeks,  and  had  our  rest  broken 
ni^ht  after  night  in  addition,  to  help  make  and  shorten  sail.  It  is  a  common  thing 
to  be  all  hands  all  day,  and  watch  and  watch  at  nights,  for  long  voyages.  But 
these  gentlemen  had  to  carry  pistols  and  a  cutlass.  Is  this  harder  on  the  human 
frame  than  to  add  the  labor  of  ship's  duty  to  the  watch  and  watch  of  ordinary  sail- 
ors? But  these  gentlemen  could  not  sleep  on  account  of  the  uneasiness  natural 


292  REVIEW  OF  THE  PROCEEDINGS 

to  their  situation.  We  intend  to  treat  this  matter  fairly,  and  admit  that  such  ap- 
prehensions might  cause  one's  rest  to  be  disturbed,  without  any  imputation  of  a 
want  of  due  firmness,  though  we  think  habit  and  weariness  would  soon  bring  re- 
lief. We  have  a  better  opinion  of  the  physical  powers  of  these  gentlemen  than 
they  seem  to  have  themselves.  Besides,  the  necessity  of  the  executions  was  settled 
in  many  of  their  minds,  perhaps  in  all,  on  the  2Sth  and  29th,  when  they  could  not 
have  been  as  much  exhausted  as  they  appear  to  have  been  on  the  1st  December. 
In  addition,  to  make  this  argument  available,  either  in  law  or  morals,  they  were 
bound  to  hold  out  as  long  as  they  could,  and  to  take  the  chances  of  falling  in  with 
something,  even  though  it  were  an  American  cruiser.  There  was  no  danger  of 
their  all  breaking  down  at  once,  and  the  first  failures  would  have  given  timely  no- 
tice. As  it  was,  even  the  two  sick  men,  Garty  and  the  doctor,  were  still  able  to 
keep  watch,  when  the  men  were  hanged.  The  argument  is  clearly  untenable,  by 
proving  too  much.  The  officers  began  to  look  pale,  it  is  said  ;  this  was  probably 
true,  men  fatigued,  and  who  lose  their  rest,  being  very  apt  to  lose  their  color ; 
but  Captain  Mackenzie  tells  us  that  even  Cromwell,  the  gigantic  desperado,  sla- 
ver, and  pirate,  looked  pale  as  early  as  the  27th,  though  he  still  looked  determined. 
In  this  respect,  then,  one  side  was  not  much  better  off  than  the  other.  As  for  the 
fatigue  produced  by  walking  so  much,  to  which  some  of  them  allude,  Capt.  Mac- 
kenzie should  have  permitted  them  to  sit  down. 

A  reason  given  by  Mr.  Perry,  for  supposing  that  a  rescue  would  be  attempted, 
•was,  that  Mr.  Spencer,  Cromwell,  and  Small,  looked  unconcerned,  as  if  they  ex- 
pected a  rescue.     (See  record,-  p.  62.)     If  required  to  distinguish  between  this 
species  of  unconcern  and  that  which  belonged  to  innocence,  we  apprehend  the 
witness  would  have  been  embarrassed.     Let  us  examine  the  point.     The  three 
men  are  in  double  irons,  on  the  known  charge  of  mutiny,  and  they  do  not  look 
concerned.     The  question  is,  ought  that  unconcern  to  be  ascribed  to  a  confidence 
of  a  rescue,  or  to  some  other  cause  ?     In  the  first  place,  the  chances  of  a  rescue 
were  small.     The  officers  were  armed,  had  command  of  the  vessel,  and  had  told 
them  their  brains  would  be  blown  out  at  the  least  sign  of  any  attempt  to  commu- 
nicate with  the  crew.    Now,  a  good  deal  of  delicate  management  would  be  neces- 
sary to  get  possession  of  a  quarter-deck  like  that  of  the  Somers,  and  the  risk  of 
the  prisoners  being  killed  in  the  struggle  was  so  great,  as  to  render  them  anything 
but  unconcerned.     They  had'  been  often  told  to  lie  down,  look    round,  not  to 
make  signs,  under  the  penalty  of  death,  and  we  find  it  difficult  to  believe  that, 
manacled  as  they  were,  they  would  regard  the  chances  of  a  struggle  for  their  res- 
cue with 'unconcern.     They  might  be  willing  to  take  the  risk,  but  it  must  have 
^troubled  them,  we  think.     On  the  other  hand,  what  had  they  to  fear  in  their  pres- 
ent situation  ?     Mr.  Spencer  declared,  it  is  said,  he  intended  to  run  away  as  soon 
as  he  got  home,  and,  with  a  father  who  was  a  cabinet  minister,  he  could  not  have 
apprehended  much  for  his  life.     There  had  been  no  overt  act  of  mutiny,  and  the 
whole  affair,  without  the  executions,  would  not  have  been  remembered,  probably, 
but  a  week  or  two  after  the  brig  got  in.     As  for  Small,  he  had  made  his  confes- 
sion, and  might  naturally  expect  to  find  at  least  mercy,  while  it  is  quite  as  reasonable 
to  suppose  Cromwell's  unconcern  proceeded  from  the  consciousness  of  innocence, 
as  from  any  other  cause.     Native  resolution  may  very  well  have  supported  him  ; 
while,  conscious  of  his  own  great  physical  powers,  this  man  ought  in  reason  to 
suppose  he  would  have  been  one  of  the  first  sacrificed,  in  the  event  of  an  attempt 
at  rescue,     If  he  was  so  formidable  as  to  need  an  array  of  officers — one  with  a 


OF  THE  NAVAL  COURT  MARTIAL.  293 

pistol  cocked  and  pointed  at  him — to  arrest  him  singly  on  the  quarter-deck,  he 
must  have  believed  he  had  little  to  hope  on  such  an  occasion. 

The  supposed  evidence  of  an  intention  to  rise,  generally,  is  urged  in  vindica- 
tion of  the  necessity  of  the  execution.  The  conduct  of  Wilson,  the  sailmaker,  is 
in  particular  mentioned  by  several  of  the  witnesses,  a-nd,  among  others,  by  Captain 
Mackenzie.  Wilson  had  a  desperate-looking  dagger,  and  had  told  one  of  the 
boys  that  he  would  cut  his  throat  with  it.  This  dagger,  in  Captain  Mackenzie's 
report,  is  made  to  assume  a  very  dangerous  aspect,  and  it  evidently  had  its  influ- 
ence on  the  opinions  of  most  of  the  officers.  The  reader  will  find  the  explanation 
of  all  this  at  page  160  of  the  record.  It  would  excite  a  smile,  did  not  a  painful 
feeling  suppress  it. 

Then  Wilson  was  seen  sharpening  his  battle-axe.  We  confess,  this  struck  us 
as  a  little  ominous,  for  it  was  scarcely  probable  that  any  one  man  would  make  an 
unsupported  attempt  at  a  rescue.  But  Mr.  Perry  disposes  of  this  ominous  fact, 
by  an  answer  he  gives  to  the  judge  advocate  at  page  69.  "  If  you  thought  his 
(Wilson's)  conduct  so  suspicious,  why  did  you  not  report  it  before  ?"  was  the 
question  ;  meaning  before  his  (Wilson's)  arrest.  Here  is  the  answer :  "  I  did 
not  think  his  cleaning  his  battle-axe  suspicious  at  that  lime — 'twas  a  usual  occur- 
rence" 

This  man  Wilson  seems  to  have  liked  Mr.  Spencer,  and  he  may  have  had  some 
vague  conversations  with  him ;  for  it  seems  he  went  aft  and  reported  something  to 
Captain  Mackenzie,  which  that  gentleman  pronounces  in  his  report  to  have  been 
"some  lame  and  absurd  confession,"  page 201;  and  he  puts  him  in  irons.  It 
would  have  been  more  satisfactory  had  Captain  Mackenzie  let  us  known  what  this 
something  was,  that  we  might  have  judged  of  its  value  for  ourselves.  But,  what- 
ever may  have  been  the  intentions  of  Wilson,  or  the  dangerous  character  of 
M'Kinley,  both  were  in  irons  on  the  30th,  and  neither  could  aid  in  a  rescue. 
Both  have  been  brought  into  port,  and  both  have  been  discharged  without  a  trial, 
though  Captain  Mackenzie  had  them  weeks  and  weeks  within  his  reach,  as  pris- 
oners, within  the  waters  of  New  York  ! 

The  position  of  the  brig  had  something  to  do  with  the  necessity  of  the  execu- 
tions. Mr.  Perry  is  required  to  give  the  distance  from  some  of  the  nearest  islands, 
at  meridian,  each  day,  from  the  26th  November  to  the  1st  December  inclusively. 
This  is  done  at  page  75  of  record.  English  Harbor,  Antigua,  is  in  17  ^degrees 
12  minutes  north  latitude,  and  61  degrees  48  minutes  west  longitude.  The  ex- 
ecutions took  place  in  17  degrees  34  minutes  28  seconds  north  latitude,  and  -~>7 
degrees  57  minutes  45  seconds  west  longitude.  Mr.  Perry,  on  1st  December, 
makes  Antigua  388  miles  distant  from  the  place  of  execution.  (See  record,  p.  75.) 
Without  going  into  a  minute  calculation,  we  will  put  the  case  so  plainly  any  one 
can  understand  it.  Between  English  Harbor  and  the  place  of  execution  there 
are  but  some  twenty-seven  statute  miles  of  difference  in  the  latitude.  The  dif- 
ference in  the  longitude  is  3  degrees  50  minutes  16  seconds.  Now  a  degree  of 
longitude  in  the  17th  degree  of  latitude  measures  a  trifle  less  than  66  English 
miles.  Calling  the  difference  of  longitude  4  degrees,  which  it  was  not  by  about 
10  mile?,  it  makes  the  distance  on  the  17th  parallel  of  latitude  just  264  English 
miles,  which  will  about  cover  the  trifling  variation  of  course  occasioned  by  the 
twenty  odd  miles  of  the  actual  difference  in  the  latitude.  We  suppose  the 
Somers  to  have  been  about  250  miles  from  Barbuda  and  Antigua  at  the  moment 
of  the  executions.  There  is  something  that  requires  explanation  in  these  an- 
swers of  Mr.  Perry.  For  instance,  he  places  the  Somers  at  388  miles  from  An- 


294  REVIEW  OF  THE  PROCEEDINGS 

tigua  on  the  1st  December.  On  the  30th  November  he  places  her  at  620  miles. 
Of  course  she  was  232  miles  nearer  on  the  first  day  than  on  the  second.  Now 
her  run  by  log  is  given  as  only  191  miles  in  these  twenty-four  hours.  The  dif- 
ference, of  course,  must  have  been  owing  to  the  current.  It  follows,  had  the 
brig's  run  been  the  same  in  the  twenty-four  hours  that  succeeded,  and  the  current 
been  the  same,  as  doubtless  it  was,  she  would  have  been  up  with  Antigua  in  the 
afternoon  of  the  2d  December,  or  within  the  thirty-six  hours  that  some  of  the 
witnesses  seem  to  think  marked  the  limits  of  all  the  officers'  powers  of  endurance. 
This  is  a  very  important  fact,  and  renders  the  theory,  that  a  man-of-war  is  not  to 
go  into  port  even  to  charter  a  craft  to  receive  prisoners,  who  must  otherwise  be 
carried  on  the  American  coast  on  deck,  if  not  in  bags,  in  the  dead  of  winter, 
somewhat  indispensable. 

According  to  Mr.  Perry,  the  Somers,  on  the  2Sth,  at  meridian,  was  872  miles 
from  Barbadoes.  On  the  29th,  this  distance  was  lessened  to  690  .miles.  The 
difference  is  182  miles.  From  meridian  28th  to  meridian  29th,  the  run,  by  log, 
was  only  144  miles,  leaving  38  miles  to  be  effected  by  the  current,  even  had  the 
brig  been  steering  directly  for  Barbadoes,  instead  of  running  diagonally  past.  At 
meridian  December  1st,  Barbadoes  is  said  to  have  been  distant  only  335  miles. 
This  does  not  tally  with  our  measurement  by  100  miles,  but  we  can  not  explain 
the  matter.  Let  us  calculate  from  November  28th.  Between  this  day  and  De- 
cember 1st,  the  brig  ran,  by  log,  511  miles.  Add  to  this  a  drift  of  38  miles  each 
day,  or  114  miles  in  all,  and  we  place  the  brig  only  247  miles  from  this  island 
when  the  execution  took  place.  A  slight  change  in  the  course  would  have  brought 
the  brig's  head  in  the  direction  of  Barbadoes,  and  the  set  of  the  current  was  tow- 
ard that  island.  Such  calculations  can  not  be  minutely  accurate,  something  de- 
pending on  the  wind  and  the  sail  carried;  but  the  difference  would  not  be  very 
material.  We  think  the  printed  record  must  contain  some  mistakes,  as  to  these 
distances  given  by  Mr.  Perry,  which  strike  us  as  wrong  in  more  than  one  particu- 
lar. There  can  be  no  question,  however,  as  to  the  position  of  the  Somers  when 
the  execution  took  place,  that  being  laid  down,  with  precision,  in  the  charges. 
We  conceive,  and  have  maintained  ever  since  the  leading  facts  of  this  case  have 
been  accurately  known  to  us,  that  the  instant  the  commander  of  the  Somers  fore- 
saw a  probable  necessity  for  executing  the  prisoners,  it  became  his  duty  to  stand 
for  the  nearest  available  port.  "  Owing  to  the  direction  of  the  wind  and  currents, 
this  might  have  been  Martinique,  or  even  Antigua,  to  either  of  which  islands  the 
Somers  must  have  been  materially  nearer  than  she  was  at  the  time  of  the  execu- 
tions, had  the  brig  been  kept  away  as  early  as  the  28th.  Had  this  course  been 
adopted,  there  is  scarce  a  doubt  that  the  Somers  would  have  been  in  port  in  a 
very  few  hours,  some  twenty-four  at  most,  after  the  memorable  moment  when  the 
men  were  hanged  ! 

The  defence  has  foreseen  this  objection,  and  has  produced  its  reasons  against 
it.  In  the  first  place,  the  Somers  would  not  have  been  executing  the  duty  on 
which  she  was  sent — the  orders  of  the  department  would  not  have  been  followed 
to  the  letter  !  If  true,  this  is  a  miserable  answer ;  but  it  is  not  true.  A  part  of 
the  orders  under  which  Capt.  Mackenzie  sailed  is  conceived  in  these  words,  and 
he  ought  to  have  known  it — probably  did  know  it — viz.,  no  person  shall  "be  de- 
prived of  life,  liberty,  or  property,  without  due  process  of  law."  Any  order  which 
contravened  this  order,  became  illegal,  and  he  not  only  was  not  bound  to  obey  it, 
but  he  has  been  sworn  not  to  obey  it.  We  do  not  mean  an  individual  may  not 


OF  THE  NAVAL  COURT  MARTIAL.  295 

legally  take  life,  without  the  form  of  law,  but  we  do  mean,  so  far  as  legal  orders 
are  concerned,  that  this  is  the  paramount  order — the  supreme  law  of  theTland. 

^Then  the  excuse  of  following  the  intentions  of  the  department,  in  a  case  like 
this,  can  scarcely  meet  with  too  strong  reprehension.  The  department  never 
meant  anything  of  the  sort,  and  the  spirit  of  all  orders  is  to  be  obeyed ;  it 
was  a  time  of  profound  peace,  and  the  Somers  was  simply  returning  from  the 
coast  of  Africa,  where  she  had  been  with  despatches.  In  this  connexion,  it  may 
be  well  to  say  that  all  which  is  thrown  out  on  the  trial,  about  the  "honor  of  the 
flag,"  "going  into  action  with  credit,"  and  such  rhodomontade,  is  worse  than 
boyish  on  an  occasion  like  this.  It  is  pressing  a  principle  which,  even  in  moments 
of  actual  war,  is  always  taken  with  certain  allowances, into  the  service  of  a  weak 
cause,  by  using  it  when  it  can  only  be  used  at  all  as  a  naked  theory.  Carried 
out,  it  would  justify  a  clever  first  lieutenant  in  hanging  a  poor  captain,  in  order 
to  introduce  better  discipline,  and  make  an  inefficient  ship  efficient.'  The  only 
circumstances  that  can  render  such  a  course  at  all  plausible,  viz.,  pressing  danger 
of  a  conflict,  it  is  notorious  did  not  exist. 

But,  changing  the  course  would  have  destroyed  the  confidence  of  the  officers, 
say  Captain  Mackenzie's  witnesses.  If  it  did,  they  must  have  been  a  very  pe- 
culiar set  of  officers.  Even  supposing  the  reason  not  to  be  communicated  to 
them,  it  is  not  easy  to  see  why  confidence  would  be  lessened  by  going  toward  a 
place  of  comparative  safety,  instead  of  remaining  out  on  the  high  seas.  As  it  was, 
they  were  armed  to  the  teeth,  were  pointing  their  pistols  at  the  men  and  threat- 
ening to  shoot  them,  and  were  existing  in  anything  but  a  quiet,  calm  confidence 
of  the  power  of  discipline.  They  must  have  believed  the  danger  to  the  last  de- 
gree imminent,  or  they  are  guilty  out  of  all  question — guilty  en  masse — must  have 
thought  themselves,  as  it  was,  driven  to  the  wall,  and  we  can  not  see  that  their 
case  would  have  been  any  worse  by  the  discovery  of  a  door  through  which  they 
might  retire,  at  need,  carrying  their  assailants  with  them  as  prisoners.  We  never 
heard  of  an  army  that  lost  confidence  by  knowing  that  proper  care  had  been  taken 
to  provide  for  its  retreat,  though  drawn  up  in  front  of  its  enemies,  in  readiness  for 
a  pitched  battle.  But  the  reason  would  have  settled  the  whole  matter,  as  respects 
the  officers.  Had  Captain  Mackenzie  let  his  reason  be  known,  it  would  have 
been  ail-sufficient.  It  must  have  been  a  strange  set  of  officers  who  did  not  un- 
derstand the  difference  between  going  into  port,  m  order  to  avoid  the  necessity  of 
hanging  men  without  a  trial,  and  of  going  into  port  out  of  apprehension  of  the 
crew. 

But,  a  change  of  course  would  have  given  the  alarm  to  the  men,  caused  them 
to  think  the  officers  frightened,  and  brought  on  the  rescue.  This,  too,  is  said  of 
a  ship's  company  in  which  all  the  navigators  were  in  irons,  and  without  the  means 
of  knowing  anything  about  it.  As  for  the  men  at  the  wheel,  who  can  suppose 
they  would  think  a  change  of  half  a  point,  or  a  point,  in  the  course,  meant  any- 
thing so  very  serious.  In  running  800  miles,  a  very  trifling  variation  in  the  direc- 
tion makes  a  great  difference  in  the  result.  The  change  might  have  been  made 
gradually,  or  as  changes  are  constantly  made  at  sea.  The  variation  of  the  compass 
compelled  changes  in  the  apparent  course,  and  a  little  mystified  conversation  in 
hearing  of  the  men,  would  have  completely  set  their  suspicions  to  sleep,  had  they 
even  been  awakened,  which  we  think  highly  improbable.  As  for  the  crew's  fan- 
cying the  officers  frightened,  it  would  have  been  easy  for  the  last  to  convince 
them  of  their  mistake.  Had  the  disaffection  been  as  bad  as  the  witnesses  seem 
•to  think,  occasions  were  constantly  offering.  It  would  have  been  far  better  to 


296  REVIEW  OF  THE  PROCEEDINGS 

have  brought  on  a  collision  with  some  of  these  disobedient  mutineers,  shot  one  or 
two  on  the  spot,  than  to  hang  submissive  men  who  were  already  in  irons.  The 
cat,  properly  applied,  would  have  proved  a  convincing  argument  with  the  crew, 
as  to  who  commanded.  If  Waltham  was  flogged  on  the  28th  and  29th,  the  brig 
running  northwest  by  west  three  quarters  west,  we  fancy  it  felt  to  him  very  much 
as  it  would  had  the  brig  been  running  west  by  north  three  quarters  north.  As  for 
the  opinion  that  at  the  sight  of  land,  the  disaffected  would  certainly  have  attempted 
a  rescue,  we  will  ask  if  that  is  as  reasonable  as  to  anticipate  the  same  consequences 
from  the  sight  of  the  gallows  ? 

The  two  rushes  aft,  that  when  Mr.  Perry  called  some  of  the  people  to  "  lay 
aft,"  in  order  to  secure  the  main-boom,  and  that  when  the  call  was  to  sway  upon 
the  maintop-gallant  mast-rope,  have  been  cited  as  instances  of  the  danger,  and, 
through  the. danger,  of  the  necessity  of  the  execution. 

We  think  the  case  of  the  mast-rope,  and  of  the  tramping  aft.  might  justify  Mr. 
Gansevoort  in  believing  a  crisis  had  come,  under  his  previous  impression*,  though 
we  think  the  impressions  themselves  to  have  been  insufficiently  sustained.  The 
conduct  of  Mr.  Gansevoort,  always  allowing  for  his  impressions,  was  spirited  and 
good.  It  gives  us  sincere  pleasure  to  be  able  to  say  this,  for  he  bears  an  honor- 
able name,  and  the  reputation  of  his  gallant  old  grandfather  was  a  pledge  that  the 
heart  of  this  young  officer  would  be  right,  whatever  might  be  his  mistakes  of  judg- 
ment. It  would  require  strong  proof  to  induce  us  to  distrust  the  courage  of  any 
who  bear  this  highly  respectable  name.  But  Mr.  Gansevoort  admits  himself  it 
was  all  a  mistake,  and  is  rejoiced  he  did  not  fire.  The  subsequent  explanations 
take  this  case  quite  out  of  the  category  of  the  mutinous  symptoms.  The  tramping 
of  a  parcel  of  lads,  who  were  chased  with  the  colt,  and  who  were  started  up  from 
lying  on  the  deck,  is  a  natural  occurrence,  and  has  happened  often  without  any 
intention  of  mutiny.  We  shall  presently  give  our  own  theory,  however,  of  the 
trifling  disorganization  that  we  make  no  doubt  did  exist  in  this  particular  crew. 

Mr.  Perry's  case  of  the  main-boom  explains  itself.  The  brig  was  rolling  heav- 
ily, the  boom  was  thrashing  about,  and  the  men  came  aft  strong,  and  in  a  hurry, 
not  knowing  exactly  what  may  have  been  the  extent  of  the  injury  in  the  dark. 
Pistols  had  been  seen,  and  one  can  tell  what  zeal  they  sometimes  awaken.  No 
attempt  was  made  to  throw  Mr.  Perry  overboard,  or  to  seize  the  quarter-deck, 
and,  it  strikes  us,  a  little  cool  reflection  ought  to  have  satisfied  everybody  nothing 
of  the  sort  was  intended.  The  witnesses  constantly  imagine  the  mutineers  not 
only  to  have  been  all  intention,  but  weak  enough  to  let  that  intention  be  constantly 
seen.  To  suppose  conspirators  so  careless  as  to  betray  their  disaffection  at  every 
turn  is  extremely  unreasonable,  while  it  was  natural  for  a  partially  disorganized 
crew  to  act  as  these  boys  are  described  as  having  acted. 

Our  theory  of  the  disorder  which  existed  among  the  crew  is  as  follows :  We  suppose 
Mr.  Spencer  to  have  spoken  disrespectfully  of  his  commander,  and  we  do  not  doubt 
that  Cromwell  used  the  language  attributed  to  him.  It  is  by  no  means  uncommon 
for  commanders  to  fall  under  the  strictures  of  their  inferiors,  and  even  though  the 
language  might  be  mutinous  in  strict  construction,  it  is  very  seldom  any  harm 
comes  of  it.  Cromwell  appears  to  have  been  an  exceedingly  passionate  and 
violent  man,  and  he  yielded  to  his  temper  indiscreetly.  To  suppose,  however, 
his  abusing  the  lacing  of  the  jib  as  represented,  to  have  any  connexion  with  a 
conspiracy  to  run  away  with  the  brig,  is  to  suppose  the  very  man  whose  art  and 
management  are  dragged  in,  to  account  for  facts  that  can  be  accounted  for  in  no 
other  manner,  was  absolutely  wanting  in  common  sense.  We  can  imagine  Mr. 


OF  THE  NAVAL  COURT  MARTIAL.' 


297 


Spencer,  admitting  him  to  entertain  the  project  that  is  imputed  to  him,  mi^ht 
systematically  undervalue  his  commander  to  bring  him  into  discredit  with  die 
crew,  and  we  can  suppose  the  crew  in  a  measure  influenced  by  this  loss  of  credit, 
without  any  design  of  mutiny,  but  we  can  not  suppose  Cromwell  so  mixed  a 
character,  as  to  be  both  cunning  and  the  reverse,  a  fool  and  a  sensible  shrewd 
conspirator. 

The  placing  of  Mr.  Spencer  in  irons,  on  the  quarter-deck,  was  a  great  mistake 
in  the  commencement.  The  less  the  crew  knew  of  the  plot,  the  greater  would  be 
the  visible  effect  it  produced  among  them.  The  manner  in  which  Cromwell  was 
arrested,  denoted  demoralization  of  the  quarter-deck,  and  a  demoralized  quarter- 
deck is  sure  to  produce  disorder  and  uncertainty  all  over  the  ship.  We  distin- 
guish essentially  between  an  unreasonable  exaggeration  of  danger,  and  an  un- 
manly dread  of  meeting  it.  The  highest  order  of  courage  is  doubtless  that 
which  sees  danger  only  when  danger  exists,  and  then  meets  it  steadily  and  with 
a  perfect  use  of  the  faculties ;  but  brave  men,  those  who  are  ready  to  risk  their 
lives  on  all  suitable  occasions,  often  see  danger  where  there  is  truly  none.  The 
last  is  a  mental  rather-than  a  physical  defect,  while  the  opposite  quality  is  a  union 
of  high  moral  and  physical  courage. 

We  never  heard  of  a  stronger  instance  of  exaggeration  of  danger,  than  the 
circumstances  which  attended  the  arrest  of  Cromwell.  A  single  man  was  de- 
scending in  the  midst  of  a  body  of  armed  officers,  and  he  is  met  by  one  of  them 
with  a  cocked  pistol,  and  told  to  walk  aft !  This  was,  at  once,  throwing  away 
the  supremacy  of  command,  setting  discipline  altogether  aside,  and  resorting  to 
sheer  force — using  the  ascendency  of  the  pistol  instead  of  that  of  the  law.  It 
was  a  direct  admission  of  apprehension  of  one  sort,  and  such  a  departure  from  the 
quiet  exercise  of  authority,  as  to  be  apt  to  induce  the  crew  to  see  that  they  were 
existing  under  a  new  regime  ;  one  of  force,  and  not  one  of  law.  Nothing  called 
for  this  extrordinary  course.  There  was  no  resistance,  had  been  no  resistance  ; 
and  it  would  have  been  time  enough  to  show  a  pistol,  when  a  pistol  was  actually 
needed.  Now  this  pistol  went  off.  We  have  no  disposition  to  use  what  may 
have  been  a  perfectly  accidental  thing,  especially  as  applied  to  a  novel  and  peculiar 
species  of  arms,  in  the  least  unfairly.  Still  the  report  of  this  pistol  must  have 
been  heard,  and  must  have  sounded  odd  in  the  ears  of  those  who  saw  no  other 
signs  of  mutiny  than  the  peaceful  arrest  and  unresisted  ironing  of  the  accused. 
Men  who  could  make  as  great  a  mistake  as  this,  lessening  the  dignity  of  com- 
mand to  the  threat  of  the  alarmed,  would  be  apt  to  commit  other  similar  blunders. 
Very  young  officers  were  given  pistols,  and  went  about  the  decks  in  a  way  to 
excite  feeling  among  the  crew.  We  have  in  evidence  several  instances  in  which 
menaces  of  putting  portions  of  the  crew  to  death  were  used,  and  it  is  probable 
many  more  occurred.  Under  such  circumstances  it  is  not  surprising  that  th*.> 
men  got  to  be  uncertain  in  their  conduct,  and,  in  the  end,  a  little  wilful.  The 
great  difficulty  in  accounting  for  the  behavior  of  the  people,  which  one  witiu.^- 
describes  as  a  little  stiff,  and  which  we  suppose  to  have  been  the  best  term  that 
could  be  used,  on  any  other  grounds,  is  the  fact  that  conspirators,  plotters,  men 
who  had  the  objects  imputed  in  view,  would  have  had  a  direct  and  obvious 
interest  in  pursuing  another  course.  On  the  other  hand,  men,  and  boys  in  par- 
ticular, can  never  be  driven  in  this  way  without  exciting,  in  a  greater  or  less 
degree,  a  spirit  of  opposition. 

It  will  not  do  to  justify  the  necessity  on  evidence  that  can  not  be  in  some  meas- 
ure imparted.  Anything  short  of  that  which  admits  of  some  description,  is  con*- 

38 


298  REVIEW  OF  THE  PROCEEDINGS 

jecture,  and  men  are  not  to  be  hanged  on  conjecture.  But,  we  have  many  points  of 
evidence  given  to  us  in  terms,  and  we  may  judge  of  the  value  of  the  indescribable 
part,  by  that  which  has  been  described.  Nothing,  for  instance,  can  be  more  violent 
or  improbable  than  Captain  Mackenzie's  conjecture  about  the  motive  which  took 
the  men  aloft  after  the  mast  was  carried  away.  So  far  as  we  can  ascertain,  all 
the  men  belonged  there  but  Cromwell,  Wilson,  and  Anderson.  This,  then,  was 
taking  top-men  at  hazard,  and  it  is  not  to  be  believed  Cromwell  would  seek  a 
place  to  plot  where  one  ignorant  of  his  designs  might,  at  any  instant,  intrude.  It 
is  a  little  surprising  no  officer  went  aloft;  some  one  probably  would  have  done  so, 
but  for  the  feeling  that  prevailed  on  deck,  and  this  Cromwell  ought  probably  to 
have  expected.  We  think  in  most  vessels-of-war,  one  of  the  midshipmen  would 
have  been  there,  even  though  none  were  stationed  in  the  top.  As  for  Mr.  Perry's 
suggestion  that  the  top  was  a  very  good  place  to  create  confusion,  by  throwing 
light  sails,  rigging,  &c.,  on  deck,  it  is  something  like  affirming  that  a  man  was 
bent  on  murder  because  he  had  a  pistol  in  his  pocket.  Most  people  would  think 
the  assertion  met,  by  the  fact,  that  the  suspected  person  did  not  touch  the  weapon 
at  all.  Then  a  warfare  between  the  light  sails  of  a  brig  of  266  tons,  and  pistol 
and  musket  bullets  could  not  be  of  a  very  doubtful  issue. 

There  is  another  circumstance  connected  with  the  alleged  disaffection  of  the 
crew,  which  it  may  be  well  to  mention.  That  this  disaffection  was  not  very 
serious,  is  to  be  inferred  from  the  facts,  that  some  of  the  witnesses  did  not  observe 
it  at  all ;  that  Captain  Mackenzie  should  not  have  seen  it,  though  passing  two  thirds 
of  his  time  on  deck,  or  he  would  not  have  made  the  remark  he  did  to  Mr.  Ganse- 
voort ;  and  the  witnesses  are  almost  too  much  of  opinion  as  to  the  precise  time  when 
the  disaffection  made  itself  apparent.  Nevertheless,  they  differ  as  to  the  degree. 
In  addition  to  this,  it  is  proper  to  say  that  it  is  openly  stated  out  of  doors,  that 
discontent  existed  on  board  the  Somers,  on  her  first  cruise,  and  that  some  diffi- 
culty had  been  prognosticated  before  the  brig  sailed,  on  this,  her  last  cruise,  in 
consequence  of  the  condition  of  the  vessel.  Of  this  fact,  we  believe  there  is  no 
doubt,  our  authority  being  very  respectable.  But  there  exists  a  singular  proof 
that  something  of  this  sort  was  anticipated,  a  proof  that  Captain  Mackenzie  has 
himself  been  the  instrument  of  laying  before  the  world.  That  proof  is  this  : — 

It  will  be  remembered  that,  pending  the  sitting  of  the  court  of  inquiry,  it  was 
announced  in  the  journals,  evidence  was  found  to  show  that  Cromwell  and  an- 
other man  of  the  Somers'  crew,  had  been  at  a  house  in  the  Bowery  before  the' 
brig  sailed,  and  had  there  predicted  a  mutiny  would  break  out  on  board  her,  in 
her  next  cruise.  This  was  justly  deemed  an  important  fact,  and  a  witness  of 
the  name  of  Rice  was  introduced  to  establish  it.  It  was  soon  discovered,  how- 
ever, that  Rice  referred  to  a  conversation  held  by  a  boatswain's  mate  of  the  name 
of  Phclps,  and  before  Cromwell  had  joined  the  Somers,  and  his  testimony  was 
not  received.  The  character  of  his  testimony,  notwithstanding,  is  known,  and  it 
would  have  probably  shown  that  this  other  man  predicted  a  mutiny,  or  trouble  on 
board,  of  some  sort  or  other.  We  make  no  doubt  that  this  prediction  was  con- 
nected with  the  previous  discontent,  and  we  find  in  this  fact,  and  all  that  we  learn 
from  other  sources,  a  sufficient  explanation  of  the  little  stiffness  and  other  signs  of 
dissatisfaction  that  existed  on  board  previously  to  the  arrests.  This  was  doubt- 
less increased  by  what  occurred  in  the  brig  after  the  arrests.  We  shall  presently 
show  why  boys  would  be  likely  to  get  unruly  in  a  vessel  officered  as  was  the  Somers. 

As  the  guilt  of  the  prisoners  was  closely  connected  with  the  necessity  of  the  exe- 
cutions, as  well  as  with  their  justification,  we  shall  next  consider  this  important  point. 


OF  THE  NAVAL  COURT  MARTIAL.  299 

The  length  to  which  this  article  is  unavoidably  extending,  admonishes  us  of  the 
necessity  of  doing  this  in  the  briefest  mode  that  is  compatible  with  clearness.  As 
there  can  be  little  question  that  Mr.  Spencer  and  Small  were,  to  say  the  least, 
extremely  indiscreet,  sufficiently  so  to  bring  them  within  the  provisions  of  the 
statute,  we  shall  not  waste  our  lime  on  their  cases.  We  do  not  admit  that  all 
which  is  charged  against  these  two  is  made  out  in  a  manner  fully  to  satisfy  our 
mind,  nor  are  we  altogether  disposed  to  receive  their  alleged  confessions  exactly 
in  the  light  in  which  they  are  generally  received ;  but  that  these  two  were  engaged 
in  a  seeming  plot,  resembling  the  one  described,  we  hold  to  be  proved  ;  though 
we  greatly  question  if  an  attempt  would  ever  have  been  made  to  carry  it  into 
serious  execution.  We  shall  reason,  however,  as  if  their  guilt  were  established, 
on  every  point,  reserving  a  few  opinions  as  respects  them  for  future  remark. 

The  guilt  of  the  five  others,  viz.,  of  Cromwell,  M'Kee,  M'Kinley,  Wilson, 
and  Green,  then,  is  the  question  before  us.  Of  these  five,  the  name  of  M'Kin- 
ley is  down  on  Mr.  Spencer's  list,  as  certain  ;  and  those  of  Wilson,  M'Kee,  and 
Green,  are  among  the  doubtful;  the  first  two  with  marks  opposite,  to  denote  that 
they  would  probably  be  induced  to  join  in  the  plot  before  its  execution.  On  the 
muster-bill,  M'Kee's  name  appears  as  stationed  at  the  wheel,  M'Kinley  at  the  arm- 
chest,  and  Wilson  was  designated  as  one  of  those  who  were  to  act  in  the  cabin 
and  steerage.  The  name  of  Cromwell  does  not  appear  on  the  programme,  or 
station-bill ;  though  it  is  maintained  that  the  E.  Andrews,  on  the  list  of  certain, 
was  probably  intended  for  this  person.  We  will  take  the  case  of  this  man,  first, 
by  itself.  Of  the  others,  we  shall  have  very  little  to  say. 

The  guilt  of  Cromwell  is  inferred  from  the  very  fact,  that  his  name  is  not  on  this 
list.  Who  can  E.  Andrews  be,  if  not  Cromwell  V  it  is  asked,  with  something  very 
like  an  air  of  triumph.  When  questioned  on  this  subject,  it  is  said  Mr.  Spencer 
answered  that  E.  Andrews  was  the  real  name  of  Small.  There  can  be  no  ques- 
tion that  every  fair  logical  inference  would  lead  us  to  believe  Mr.  Spencer  told 
the  truth,  reasoning  on  the  supposition  that  the  Greek  papers  were  serious  docu- 
ments, as  the  following  analysis  of  the  facts,  we  think,  will  show  : — 

As  the  Greek  character  is  used  obviously  to  conceal  all  the  names,  we  can  see 
no  more  reason  for  supposing  an  alias  was  used  for  Cromwell's,  than  for  that  of 
any  other  person.  The  means  taken  to  conceal  this  paper  is  a  proof  it  was 
deemed  entirely  private.  It  was  intended  for  Mr.  Spencer's  own  use,  or  amuse- 
ment, as  he  may  have  been  influenced  in  his  main  object,  and  there  was  no  ne- 
cessity for  adopting  an  alias.  Cromwell,  had  he  seen  the  paper,  could  not  have 
told  whether  his  name  was  on  it,  or  not.  Then  E.  stands  for  Elisha,  which  was 
Small's  Christian  name,  and  it  does  not  stand  for  Samuel,  which  was  Cromwell's 
Christian  name.  The  inference  that  Cromwell  was  so  very  wily,  as  to  insist  his 
name  should  not  go  on  the  list,  ill  agrees  with  the  accounts  given  of  his  general 
manner,  which  is  supposed  to  indicate  mutinous  feelings  at  all  hours  and  seaxms. 
A  man  so  excessively  cautious  and  cunning  would  have  manifested  these  qualities 
where  they  were  most  essential. 

But  there  were  two  papers,  detached  from  each  other,  as  they  were  found  in 
the  razor-case.  One  of  these  papers  contains  the  names  of  the  "certain,"  "doubt- 
ful," and  "nolens-volens"  men;  and  the  other  the  station-bill,  for  the  moment 
of  execution.  Neither  Cromwell's  nor  Andrews's  name  appears  on  this  last,  while 
that  of  Small  does.  This  point,  of  itself,  would  seem  conclusive.  The  paper 
was  got  up  for  something,  or  for  nothing.  If  for  nothing,  it  is  worth  nothing;  if 
for  something,  it  must  be  viewed  in  relation  to  that  particular  object.  Unless  it 


300  REVIEW  OF  THE  PROCEEDINGS 

told  the  truth,  it  was  worse  than  nothing.  If  Mr.  Spencer  made  it  a  false  record, 
it  was  only  to  deceive  himself.  Want  of  names  was  not  its  fault,  but  excess  of 
names.  Witnesses  swear  they  believe  one  name  at  least  is  on  the  list  of  "doubt- 
ful," when  the  party  was  entirely  innocent.  Under  such  circumstances,  why  should 
any  certain  name  be  omitted  ?  Is  it  to  be  supposed  Cromwell,  the  giant,  the 
desperado,  would  have  nothing  to  do  in  the  moment  of  trial  ?  Captain  Macken- 
zie's counsel  took  the  extraordinary  ground,  in  relation  to  this  point,  that  Crom- 
well, doubtless,  was  to  be  everywhere — where  he  pleased — keeping  up  a  general 
superintendance.  Well,  admit  this  ;  why  did  not  the  programme  say  as  much. 
There  was  the  same  reason  for  stating  this  as  for  stating  all  the  rest.  It  was  a 
programme,  a  station-bill,  one  clearly  intended  to  make  as  large  a  figure,  on  paper, 
as  possible  ;  and  while  one  can  believe  an  insignificant  person  might  be  forgotten, 
or  not  stationed,  it  can  hardly  be  supposed  a  ringleader  would  be  overlooked.  Is 
it  probable  Mr.  Spencer  would  put  down  his  own  name,  and  not  Cromwell's  ? 
The  fact  that  Small's  name  is  introduced  in  the  second  paper — used  twice,  in- 
deed— is  a  proof  that  there  was  no  especial  design  to  drop  him  on  account  of 
precaution;  still  his  name,  that  of  the  man  known  to  be  among  the  "certain,"  is 
not  down  at  all  on  the  muster-roll,  unless  down  as  E.  Andrews !  Wales  is  en- 
rolled almost  as  soon  as  enlisted,  but  Small  is  not  enrolled  at  all,  unless  as  An- 
drews, while  the  use  of  his  name  in  another  place  unanswerably  shows  that  caution 
was  not  the  reason  of  the  omission  !  In  order  to  believe  that  Andrews  meant 
Cromwell,  it  is  necessary  to  believe  that  his  alias  was  introduced  without  a  mo- 
tive. Such  a  fact  could  have  been  easily  retained  in  the  mind,  while  the  station- 
bill  required  system  and  arrangement. 

On  the  other  hand,  Mr.  Spencer's  avowed  statement  covers  every  difficulty. 
He  said  that  Andrews  was  the  real  name  of  Small,  and  when  told  that,  on  the 
other  paper,  he  had  put  the  name  of  Small  in  two  places,  he  appeared  surprised, 
and  stated  that  he  was  not  aware  he  had  done  so.  To  us  nothing  seems  more 
probable  than  the  fact  that  Small,  about  to  enter  into  such  an  enterprise,  should 
see  the  necessity  of  an  alias,  and  have  told  Mr.  Spencer  his  true  name  was  An- 
drews. Every  man  who  embarked  seriously  in  a  scheme  like  that  attributed  to 
Mr.  Spencer,  would  bethink  him  of  sailing  under  false  colors.  The  fact  that 
Small  told  an  untruth  proves  nothing,  unless  it  proves  that  he  deceived  his  lead- 
er. The  initial,  moreover,  says  a  great  deal.  This  explains  everything,  while 
the  conjecture  that  Andrews  is  an  alias  for  Cromwell,  leaves  various  difficulties 
in  the  way.  Au  restc;  the  alias  may  have  intended  any  one  else,  as  well  as 
Cromwell.  It  is  no  proof  against  any  one,  taken  per  se.  So  far,  then,  as  the  two 
papers  are  concerned,  they  would  show  that  Cromwell  was  in  no  manner  con- 
cerned in  the  plot.  We  have  reasoned  as  we  conceived  Captain  Mackenzie  was 
bound  to  reason,  on  the  supposition  of  the  real  character  of  the  mutiny,  and  taking 
the  papers  as  he  found  them. 

The  violent  supposition  that  Cromwell  was  to  bejirst  officer,  because  Wales 
says  he  was  offered  the  berth  of  third  officer,  has  been  made.  As  evidence,  this 
is  absurd  ;  as  a  probability,  worse.  In  merchant-vessels,  mates  are  divided  into 
first,  second,  third,  and  sometimes  fourth  officers ;  and  it  is  said  Mr.  Spencer  was 
to  be  captain,  Cromwell  first  officer,  Small  second,  and  Wales  third — the  berth 
offered  him  by  Mr.  Spencer.  Now,  here  are  the  unanswerable  objections  to  this 
theory.  In  the  first  place,  it  is  purely  guess-work  ;  then,  man-of-war's  men  never 
speak  of  lieutenants  as  first  or  second  officers.  The  third  officer  of  a  man-of-war 
would  be  her  second  lieutenant,  and  no  one  else,  unless  she  had  a  commodore,  or 


OF  THE  NAVAL  COURT  MARTIAL.  301 

a  second  captain  on  board.  But  what  was  to  become  of  the  man  who  was  to  be 
taken  on  board  at  the  Isle  of  Pines,  and  who  "  was  familiar  with  their  intended 
business"  ?  The  reader  will  find  Mr.  Wales's  own  statement  at  page  156.  It  is 
as  follows :  "  The  brig  was  to  proceed  to  Cape  St.  Antonio,  or  the  Isle  of  Pines, 
one  of  these  places,  and  there  TAKE  ON  BOARD  one  who  was  familiar  with.  ////•//• 
intended  business,  whom  one  of  the  conspirators  was  perfectly  acquainted  with, 

AND  WHO  WAS    READY  AND  WILLING    TO  JOIN    IN  THE  EXPEDITION."       It  is  not 

probable  such  a  man  would  serve  under  the  purser's  steward,  and  this  leaves  the 
necessity  of  cashiering  Small,  the  seaman  and  navigator,  in  order  to  make  Mr. 
Wales  third  officer,  in  the  mercantile  sense,  and,  at  the  same  time,  include  Crom- 
well ! 

The  bad  conduct  of  Cromwell,  his  oaths,  denunciations,  disobedience  of  or- 
ders, menaces  to  kill  this  or  that  individual,  and  refusal  to  receive  Mr.  Ganse- 
voort's  single-sticks  into  the  storeroom,  &c.,  &c.,  strike  us  as  singularly  odd  proofs 
of  his  guilt  as  a  conspirator.  Love  of  money  is  supposed  to  induce  him  to  plot 
a  mutiny,  but  not  to  be  strong  enough  to  induce  him  to  conceal  his  feelings  and 
intentions  !  At  one  time  he  flogs  the  boys,  and  then,  when  he  has  seriously  em- 
barked in  the  conspiracy,  he  plays  with  them,  not  in  order  to  propitiate  them,  for 
most  are  to  be  thrown  overboard,  but  to  conceal  his  designs.  Why  not  control 
Ms  tongue,  with  the  same  object  ?  This  was  not  a  conspiracy  founded  in  resent- 
ment, but  a  speculation  on  crime.  As  for  the  boys,  it  would  really  seem,  if  Capt. 
Mackenzie  rebuked  him  sharply,  two  or  three  times,  as  is  sworn  to,  it  is  sufficient 
to  account  for  his  change  of  conduct.  At  all  events,  it  silences  the  testimony  on 
this  point.  The  witnesses,  moreover,  swear  to  too  much.  They  can  all  see  that 
this  change  in  Cromwell's  deportment  took  place  after  the  brig  had  reached  Ma- 
.deira,  the  place  now  chosen  as  the  precise  spot  where  Cromwell  became  enlisted 
in  Mr.  Spencer's  projects,  though  it  had  been  at  New  York,  until  Rice's  mistake 
was  discovered  ! 

Cromwell's  language,  such  as  telling  Dickenson  his  time  was  short,  is  com- 
mon language  enough  among  that  class  of  men,  and  probably  meant  no  more  than 
that  he  (Dickenson)  would  not  long  have  it  in  his  power  to  take  liberties  with 
himself.  These  expressions  are  of  every-day  occurrence  on  board  a  ship,  and 
are  thought  nothing  of  at  the  time,  though  vulgar  men  can  easily  distort  them  into 
serious  things,  when  occasions  occur.  The  witnesses  admit  they  ascribed  them 
to  temper  and  habit  when  used.  We  look  on  all  that  relates  to  Cromwell's  ordi- 
nary deportment  and  language  as  unworthy  of  serious  refutation.  No  part  of  it 
demonstrates  a  mutinous  intent  (disrespect  of  his  officers  excepted),  and  the  open- 
ness with  which  the  man  spoke  proves,  we  think,  he  was  influenced  by  temper 
far  more  than  by  any  plot. 

The  intimacy  between  Mr.  Spencer  and  Cromwell  is  deemed  conclusive  of  the 
guilt  of  the  latter.  We  hold  the  fact  to  be  reasonably  well  established,  though 
some  of  the  witnesses  think  Mr.  Spencer  quite  as  intimate  with  Wales  and  others. 
W^ales's  own  revelations  demonstrate  that  Mr.  Spencer  believed  him  strongly  his 
friend.  Taking  things  in  the  abstract,  we  should  think  an  intimacy  between  a 
midshipman  and  one  acting  as  boatswain  more  creditable  than  an  intimacy  between 
a  midshipman  and  a  purser's  steward.  Neither  is  usual,  though  the  former  might 
proceed  from  a  high  professional  feeling,  whereas  the  latter  could  only  be  excused 
by  the  qualities  of  the  individual.  We  have  known  regular  old  salts  great  favor- 
ites aft,  and  young  officers  frequently  find  both  amusement  and  instruction  in  their 
discourse  and  opinions,  but  one  can  see  little  to  be  gained  by  a  dissertation  on 


302  REVIEW  OF  THE  PROCEEDINGS 

purser's  slops.  Still,  the  great  intimacy  sworn  to  between  Mr.  Spencer  and  Crom- 
well is  unusual.  Our  business  now  is  to  consider  in  what  manner  Capt.  Mackenzie 
ought  to  have  reasoned  on  it.  He  was  right  in  acting  as  if  he  supposed  Mr.  Spen- 
cer was  concerned  in  a  plot,  whether  there  was  a  serious  plot,  or  not ;  and,  we 
think,  he  was  bound  to  remember  that  the  ringleader  of  a  mutiny  must  be  desi- 
rous of  gaining  recruits.  Under  such  circumstances,  it  was  natural  that  Mr. 
Spencer  should  wish  to  gain  over  a  man  like  Cromwell — one  powerful,  intelli- 
gent, determined,  and  a  seaman.  This  might  require  much  artful  management 
on  his  own  part,  for  it  was  not  dealing  with  an  ordinary,  ignorant  sailor.  All  this 
would  explain  what  is  called  an  intimacy,  which  Cromwell  could  not  well  decline, 
coming  from  the  quarter-deck.  Enough  evidence  was  before  Capt.  Mackenzie, 
to  show  that  some  of  these  private  conversations  did  not  relate  to  any  mutiny. 
Some  of  them  certainly  related  to  a  voyage  to  the  northwest  coast,  or  the  witnesses 
are  foresworn.  No  man  in  his  senses  would  talk  of  being  a  pirate  on  the  north- 
west coast.  That  Mr.  Spencer,  with  the  mutiny  in  view,  may  have  attempted  to 
establish  an  interest  with  Cromwell,  by  talking  large  on  the  subject  of  his  com- 
manding a  vessel,  and  by  promises  of  making  Cromwell  an  officer  (a  fact  by  the 
way  that  is  substantially  established),  either  on  board  a  slaver,  or  on  board  a  tra- 
ding craft,  is  plausible  enough  ;  but  it  will  not  do  to  infer  that  Cromwell  knew  of 
all  his  projects,  admitting  them  to  have  seriously  existed  as  represented,  on  such 
testimony.  The  first  thing  thought  of  by  men,  who  seriously  had  determined  on 
such  a  plot  as  this  is  assumed  to  have  been,  would  be  to  foresee  the  necessity  of 
avoiding  any  appearance  of  an  intimacy.  Even  boys,  in  their  daily  roguery,  say 
to  each  other,  "Now  we  must  not  be  seen  too  much  together,  lest  they  suspect  some- 
thing" This  is  the  result  of  the  ordinary  consciousness  of  guilt,  and  it  is  a  little 
remarkable  that  Captain  Mackenzie,  who  imagined  Cromwell  had  taken  so  many 
precautions  to  conceal  his  connexion  with  the  conspiracy,  had  not  taken  this,  the 
most  obvious  of  all !  There  was,  for  instance,  no  reason  for  keeping  his  name  off 
the  programme,  but  an  apprehension  of  consequences,  in  the  event  of  its  discovery; 
for,  until  discovered  and  translated,  it  could  betray  no  one ;  and  was  it  reasona- 
ble to  infer,  that  one  supposed  to  be  so  very  cautious  on  this  point,  would  be  so 
exceedingly  remiss  on  another  that  was  obvious  to  all  who  chose  to  look  about 
them  ?  Cromwell  is  believed  to  have  used  much  art  to  conceal  his  connexion 
with  the  mutiny,  and  for  the  sole  reason  that  he  might  escape  the  consequences, 
should  the  project  fail;  and  yet  to  have  overlooked  the  very  circumstance  through 
which,  in  fact,  HE  LOST  HIS  LIFE,  and  from  which,  in  the  event  of  discovery,  he 
had  most  to  apprehend.  We  think  any  cool-minded,  clear-headed  man  would 
have  inferred  that  this  intimacy,  so  far  as  it  proved  anything,  proves  the  absence 
of  any  particular  reason  for  caution  on  the  part  of  Cromwell ;  and  we  might,  as  a 
fair  argument,  perhaps,  add  on  that  of  Mr.  Spencer.  There  was  too  much  of  it. 

Our  limits  will  not  allow  us  to  quote  all  the  evidence,  but  we  see  a  great  deal 
to  satisfy  us  that  Mr.  Spencer  was  talking  and  consulting  with  Cromwell  about 
other  projects  than  those  connected  with  this  mutiny.  If  his  own  statement  to 
Mr.  Gansevoort,  p.  32,  be  received,  where  he  says  that  he  did  not  let  Cromwell 
into  his  secret,  because  he  did  not  believe  he  would  join  in  such  a  scheme  unless 
there  was  money  on  board,  it  leaves  the  fair  inference  that  he  had  been  sounding 
the  character  of  this  man  the  whole  time,  and  had  not  been  emboldened  to  give 
him  his  confidence.  The  explanation  is  natural,  and  by  no  means  tender  of 
Cromwell's  character.  Then  Cromwell's  situation  in  the  vessel  is  to  come  into 
the  account.  As  boatswain  of  such  a  craft,  stern  by  nature,  and  educated  to  a 


OF  THE  NAVAL  COURT  MARTIAL.  303 

certain  point,  he  had  few  associates,  and  the  advances  of  one  like  Mr.  Spencer, 
would  not  be  apt  to  be  repelled.  The  wish  of  Mr.  Spencer  to  enlist  this  man,  /".%• 
not  to  be  confounded,  with  the  acts  of  the  man  himself.  It  is  evident  Cromwell,  for 
some  cause  or  other,  had  not  much  respect  for  Capt.  Mackenzie,  and  this  dis- 
respect may  have  been  increased  by  the  wily  comments  of  Mr.  Spencer,  but  all 
does  not  prove  his  connexion  with  the  alleged  mutiny. 

The  gift  of  fifteen  dollars  from  Mr.  Spencer  to  Cromwell,  is  supposed  to  be  a  cir- 
cumstance in  proving  the  guilt  of  the  latter.  The  gift  proves  nothing  beyond  the  fact 
that  the  money  was  bestowed.  It  was  openly  done,  and  it  is  not  pretended  that, 
at  the  time  it  was  given,  Cromwell  agreed  to  join  in  the  conspiracy.  The  manner 
in  which  it  was  done.  Mr.  Spencer's  language,  and  all  the  circumstances  of  the  mo- 
ment, show  that  no  bargain  then  existed  ;  the  money  would  have  been  paid  privately, 
otherwise.  The  mere  gift  of  the  money,  however,  is  no  fact  against  Cromwell. 
At  most,  it  only  shows  a  desire  on  the  part  of  Mr.  Spencer  to  gain  him  over. 
We  reason  always  on  the  supposition  of  the  latter's  guilt,  as  averred  ;  but  it  in  no 
manner  shows  that  Cromwell  was  seduced  by  $15,  to  risk  his  life  in  so  wild  and 
foolish  an  enterprise  The  essential  fact  is  wanting.  Mr.  Spencer  may  have  in- 
tended to  make  friends  with  Cromwell,  with  the  alleged  object  in  view,  but  it  is 
not  a  fair  inference  to  suppose  that  any  man  in  his  senses  would  be  seduced  by 
such  a  sum.  To  show  that  one  man  wishes  to  buy  another,  is  not  showing  that 
he  has  succeeded. 

It  is  said,  however,  that  Cromwell  gave  this  money  to  Garty  to  keep,  and  that, 
a  day  or  two  before  Mr.  Spencer's  arrest,  he  asked  for  it  back,  under  the  pretence 
of  using  the  glass  in  the  drawer  of  which  it  had  been  placed,  in  order  to  shave, 
though  he  did  not  shave.  Some  importance  has  been  attached  to  this  circum- 
stance ;  more,  we  think,  than  it  merits,  were  it  clearly  established.  In  the  first 
place,  Garty  himself  says  Cromwell  asked  for  his  glass,  not  for  the  money;  the 
latter  happening  to  be  kept  in  the  drawer  of  that  glass.  To  suppose  a  man,  bent 
on  the  projects  imputed,  would  not  think  it  wiser  to  let  so  petty  a  sum  as  fif- 
teen dollars  take  the  chances  of  being  recovered  after  the  rising,  than  to  incur  all 
the  risks  of  the  suspicion  attendant  on  withdrawing  it,  is  inferring  that  Cromwell 
was  not  very  sagacious.  The  enterprise,  if  it  really  existed,  was  one  of  great 
magnitude,  and  fifteen  dollars  would  scarce  be  thought  of  at  all,  by  most  men,  as 
the  crisis  approached  ;  or,  if  they  were,  we  think  nine  persons  in  ten  would  pre- 
fer to  let  them  remain  with  the  sergeant,  in  order  to  quiet  any  distrusts.  In  a 
word,  we  think  the  inducement  loo  trifling  to  be  apt  to  influence  a  man  like  Crom- 
well, at  such  a  moment.  After  the  rising  had  succeeded,  it  would  have  been  an 
easy  matter  for  him  to  have  got  his  glass,  and  with  it  his  fifteen  dollars.  The 
mutineers  would  not  be  very  apt  to  rob  Samuel  Cromwell,  after  he  had  I-IM-U  to 
be  first  lieutenant,  and  this  to  obtain  fifteen  dollars  of  paper  money,  that  could  be 
of  no  use  where  they  contemplated  going.  In  addition,  Garty  explains  his  first 
evidence,  by  saying,  that  he  meant  Cromwell  did  not  share  himsi-[t\  having  been 
previously  shaved  by  the  ship's  barber,  down  to  the  time  he  reclaimed  the  g 
Cromwell,  then,  was  in  the  habit  of  shaving;  if  he  was  sha\vd  by  the  ship's 
barber,  after  he  reclaimed  the  glass,  why  is  it  not  shown  ?  Sears  was  the  barber, 
and  a  willing  witness  in  the  case.  He  was  the  lad  at  whom  Cromwell  had  thrown 
a  billet  of  wood,  and  it  may  be,  after  such  a  quarrel,  Cromwell  did  not  wish  to 
trust  his  own  throat  so  near  the  other's  razor. 

But,  Garty  says  nothing  of  the  reclaiming  of  the  money,  the  only  point  in  the 
least  material,  before  the  council  of  officers.  This  is  a  very  important  fact,  for  he 


S04  REVIEW  OF  THE  PROCEEDINGS 

omitted,  at  that  time,  the  only  circumstance  worthy  of  being  related  !  Now, 
Garty  was  a  foreigner,  and  a  sergeant  of  marines.  We  ask  the  reader  to  run 
over  his  deposition,  at  p.  153,  and  he  will  see  what  sort  of  a  mind  Captain  Mac- 
kenzie warmly  recommends  to  be  transferred,  under  such  circumstances,  from  the 
berth-deck  to  the  wardroom  !  The  effect  produced  on  such  a  man,  unconsciously 
to  himself  even,  by  seeing  a  future  opened  to  his  hopes,  which,  did  he  live  long 
enough,  might  place  him  at  the  head  of  the  marine  corps  of  this  country,  may  be 
estimated  more  easily  than  the  effect  of  fifteen  dollars  in  inducing  a  human  being 
to  enter  into  such  a  project  as  that  attributed  to  Mr.  Spencer.  It  is  extraordinary 
that  Captain  Mackenzie,  when  he  wrote  his  report,  knowing  that  a  court  of  some 
sort  or  other  must  sit  on  him,  did  not  comprehend  the  nature  of  the  indiscretion 
into  which  he  was  falling,  in  earnestly  recommending  this  sergeant,  and  eight  of 
the  petty  officers  of  the  Somers,  all  witnesses  in  his  case,  to  be  preferred  to  situ- 
ations that  would  give  them  competencies  for  life,  before  the  matter  was  investi- 
gated. While  on  this  point,  we  will  show  the  extent  of  the  temptations  that  were 
thus  inconsiderately  placed  before  the  minds  of  these  men — what  preferment  they 
had  reason  to  hope  would  be  accorded  to  them,  should  Captain  Mackenzie's  con- 
duct be  approved,  viz:  Garty,  from  the  ranks,  to  be  an  officer,  with  $25  per 
month  pay,  and  80  cents  per  diem,  rations,  and  the  prospects  of  promotion. 
Wales,  from  purser's  steward,  at  $18  per  month,  to  quarter-deck  rank,  and  $1500 
per  annum.  Browning,  Collins,  and  Stewart,  petty  officers,  at  $19  per  month, 
to  be  boatswains,  with  $700  per  annum.  King,  Anderson,  and  Rogers,  petty 
officers,  at  $19  per  month,  to  be  gunners,  with  $700  per  annum.  Dickenson, 
petty  officer,  at  $19  per  month,  to  be  carpenter,  with  $700  per  annum. 

In  this  list,  the  pay  of  the  seven  last-named  beneficiaries  is  put  at  the  lowest 
sum,  for  those  who  are  employed.  When  unemployed,  they  would  receive  $500 
per  annum  each  ;  when  employed  in  ships-of-the-line,  or  in  navy-yards,  $800 
each  per  annum  :  this,  too,  in  addition  to  exchanging  the  uncertainty  of  mere  ship- 
ped berths  for  warrants. 

Now,  we  are  not  disposed  to  discredit  men  because  they  happen  to  be  in  hum- 
ble situations  in  life.  We  really  think  that  some  of  these  men,  on  the  whole,  seem 
to  swear  honestly,  but  their  testimony  before  the  council  is  weakness  itself,  as  re- 
spects any  indications  of  the  mind  that  ought  to  control  their  notions.  Still,  some 
of  them  relate  a  great  deal  more  after  this  temptation  was  placed  before  their  eyes, 
than  they  did  before,  and  we  are  disposed  to  remind  Captain  Mackenzie,  when  he 
presses  the  fact  of  the  fifteen  dollars  into  the  account  against  an  unfortunate  man 
who  has  been  hanged  without  a  hearing,  as  a  reason  for  believing  he  would  turn 
pirate,  that  he  has,  unwittingly  we  think  ourselves,  offered  far  stronger  induce- 
ments to  his  own  witnesses  to  see  things  as  he  wishes  them  to  be  seen.  It  is 
scarcely  too  much  to  say,  that  the  man  of  Captain  Mackenzie's  rank  and  years, 
who  could  make  this  grave  mistake  of  judgment — we  deem  it  to  be  just  that,  and 
no  more — does  not  come  before  the  world  with  a  very  high  claim  to  be  received 
as  one  whose  opinions  are  to  be  taken  ex  officio,  as  infallible.  At  all  events,  it  is 
just  as  fair  to  assume,  that  the  tempting  hopes  he  has  placed  before  his  own  wit- 
nesses produced  their  results,  as  to  suppose  Cromwell  was  bought  by  these  fifteen 
dollars,  to  desert  a  wife  he  evidently  loved,  and  to  enter  on  a  life  of  murder  and 
rapine. 

None  of  the  remarks  which  are  said  to  have  fallen  from  Cromwell,  in  his  differ- 
ent conversations  with  Mr.  Spencer,  have  the  least  the  character  of  pertinent  tes- 
timony. By  compressing  into  a  few  pages  the  casual  replies  and  observations, 


•M. 


OF  THE  NAVAL  COURT  MARTIAL.  305 

and  this  without  the  context,  that  fell  from  a  man  in  the  course  of  two  months,  a 
little  of  an  air  of  importance  is  given  them  ;  but,  in  the  first  place,  not  one  of  these 
sayings  amounts  to  direct  self-crimination  in  itself,  and  every  one  of  them  may 
have  been  perfectly  innocent.  Take  the  observation  about  the  Isle  of  Pines,  for 
instance.  In  the  face  of  the  fact,  that  no  piracies  are  now  committed,  or  have 
been  committed  within  the  last  fifteen  years,  this  place  is  spoken  of  as  if  it  were 
proof  a  man  is  a  pirate  who  talks  of  visiting  it !  We  think  it  probable  that  slaving 
seamen  are  found  there,  but  this  is  a  different  thing  from  piracy.  The  witnesses 
speak  of  a  man's  going  in  a  slaver,  as  a  crime  as  enormous  as  piracy,  with  a  species 
of  pretending  morality  of  which  there  seems  to  have  been  rather  too  much  in  the 
Somers. 

We  have  no  desire  even  to  seem  to  defend  slaving,  but  it  would  be  weakness 
not  to  affirm  what  is  true,  under  the  facts  of  this  case,  that  a  man  might  go  all  his 
life  in  a  slaver,  and  yet  recoil  from  piracy.  It  is  but  little  more  than  thirty  years 
since  slaving  vessels  sailed  openly  to  and  from  this  country.  At  the  commence- 
ment of  this  century,  the  trade  was  general,  and  men  did  not  hesitate  to  avow 
their  connexion  with  it.  By  a  clumsy,  and  we  think  an  illegal  anomaly,  slaving 
is  pronounced  to  be  piracy  by  our  laws,  but  this  will  not  give  it  the  moral  charac- 
ter of  the  latter  crime.  Right  and  wrong  are  not  so  totally  dependant  on  the 
statute-books,  and,  if  they  were,  men's  opinions  must  have  time  to  follow  the  tor- 
tuous teachings  of  such  a  school.  We  are  no  advocates  of  slavery  or  slaving — 
we  believe  both  to  be  adverse  to  human  interests,  and  in  some  respects  to  human 
rights — but  we  see  a  vast  difference  between  going  to  the  Isle  of  Pines  to  ship  in 
a  slaver,  and  going  there  to  ship  in  a  pirate. 

Now,  admitting  all  the  eavesdroppers  swear  to  be  true,  which  can  not  be  the 
case,  as  they  often  contradict  each  other,  it  is  possible  to  make  out  a  plausible 
theory,  which  would  lead  to  the  opinion  that  Mr.  Spencer  had  talked  with  several 
of  the  crew  on  the  subject  of  embarking  in  slaving  voyages,  and,  among  others, 
with  Cromwell.  We  do  not  say  there  is  evidence  of  the  fact,  but  there  are  frag- 
ments of  evidence  which,  when  united,  might  furnish  a  better  foundation  for  such 
a  conjecture,  than  for  any  of  the  theories  that  have  been  advanced  in  behalf  of 
Captain  Mackenzie.  It  is  not  necessary,  however,  to  suppose  Cromwell  had  en- 
listed in  even  such  a  scheme,  in  order  to  repel  any  evidence  that  has  been  pro- 
duced. Of  the  last,  there  is  none  that  would  authorize  a  magistrate  on  shore  even 
to  commit  the  man,  though  prudence  may  have  justified  Captain  Mackenzie  in 
confining  him,  at  sea.  We  have  even  our  doubts  of  this  last ;  for,  rightly  man- 
aged, we  are  of  opinion  Cromwell  might  have  proved  a  most  valuable  ally  to  the 
legal  authority  of  the  ship,  and  prevented  the  very  calamity  that  has  occurred. 

As  for  the  remarks  where  Cromwell  is  made  to  say  he  would  disguise  the  brig 
by  shipping  the  bowsprit  aft,  &c.,  &c.,  they  can  only  excite  pity  among  cool- 
minded  seamen.  If  such  casual  replies  are  to  justify  hanging  a  man,  there  would 
be  few  sailors  left.  Both  question  and  answer  are  quite  common.  We  have 
heard  both,  with  our  own  ears,  fifty  times  at  least. 

We  perceive  that  Captain  Mackenzie's  counsel,  whose  argument  we  are  en- 
deavoring now  to  follow,  ascribes  to  Cromwell  the  advice  of  cutting  away  the 
booms,  and  throwing  away  the  launch,  which  accords  with  Wales's  account  of  Mr. 
Spencer's  plans.  We  do  not  believe  any  seaman  would  have  given  the  first  ad- 
vice at  all.  The  booms  that  were  to  be  cut  away  were  nothing  but  spare  spars 
for  the  brig,  and  even  a  pirate  might  owe  her  safety  to  spare  spars.  To  say  she 
could  set  them  from  prizes  is  absurd,  since  the  necessity  for  them  would  be  most 

39 


306  REVIEW  OF  THE  PROCEEDINGS 

apt  to  occur  when  she  was  running  from,  not  for.  Besides,  if  she  took  them  on 
board,  when  she  fell  in  with  a  prize,  in  what  would  she  be  better  off  than  by  keep- 
ing on  board  those  she  had,  which  were  of  the  right  size,  and  all  ready  to  be  used. 
Au  reste,  although  Mr*  Griffen  assumes  this  fact,  we  do  not  find  that  it  is  proved. 
Something  of  the  sort,  in  connexion  with  slaving  is,  as  regards  the  launch,  but 
not  as  regards  the  looms.  A  slaver  might  want  the  space  occupied  by  the  launch, 
for  gratings,  in  order  to  admit  air  below,  but  a  pirate  would  be  a  great  fool  to  de- 
stroy his  launch,  of  which  he  would  have  much  the  same  need  as  a  vessel-of-war. 
The  project  has  much  more  of  the  romantic  character  of  the  inexperience  of  Mr. 
Spencer  himself,  than  of  the  maturer  reason  and  greater  practice  of  Cromwell. 
We  do  not  believe  the  stories,  for  we  do  not  believe  a  seaman  would  give  the 
advice,  particularly  about  the  spars,  or  booms  :  these  last  being  nothing  but  spare 
yards,  masts,  &c.,  carried  to  meet  emergencies,  and  those  of  the  right  size  and 
very  best  quality.  Nothing  would  be  gained  by  throwing  them  away,  while  much 
would  be  lost. 

Cromwell's  absence  of  mind  and  thoughtfulness,  after  Mr.  Spencer's  arrest,  are 
urged  as  a  reason  for  believing  in  his  guilt;  Mr.  GrifFen  says  before,  but  most  of 
the  testimony  is  afterward.  Now,  neither  fact  is  proved  except  by  the  opinions  of 
those,  who  certainly  utter  their  opinions  very  loosely.  The  calling  the  wrong 
watch,  and  this  is  sworn  to  have  been  after  Mr.  Spencer's  arrest,  is  much  the 
strongest  proof  of  absence  of  mind,  though  it  is  not  an  unheard-of  thing.  It  is 
like  any  other  piece  of  forgetful  ness,  in  an  eternal  round  of  the  same  duties. 

Cromwell  had  been  intimate  with  Mr.  Spencer;  he  knew  from  Mr.  Gansevoort 
the  reason  of  the  arrest,  and  superficial  reasoners  would  be  apt  to  infer  a  con- 
nexion between  them  from  the  fact.  No  one  could  see  an  associate  put  in  irons, 
on  board  a  man-of-war,  and  on  such  a  charge,  without  perceiving  that  it  might 
induce  suspicions  of  himself,  and  consequently  reflection,  if  not  uneasiness.  Then 
Cromwell  was  jealously  watched,  and  that  would  naturally  add  to  his  feelings. 
He  must  have  seen  that  King  and  Dickenson  were  consulted,  while  he  was  watched 
and  distrusted. 

The  interviews  with  Small  were  just  as  natural,  if  the  different  conversatioi 
with  Mr.  Spencer  had  been  about  slaving,  or  about  the  northwest  coast,  as  if  about 
this  mutiny.  It  will  not  do  to  infer  only  the  worst,  when  another  solution  of  the 
difficulty  is  just  as  probable. 

The  disobedience  of  the  standing  order  of  the  ship,  and  his  stubborn  perseveram 
in  disobedience  the  morning  preceding  his  own  arrest,  would  be  the  act  of  a  fool 
were  he  implicated  in  the  plot,  and  did  he  meditate  a  rising.  Such  a  thing  migl 
have  occurred  from  a  hundred  causes,  each  of  which  would  be  more  plausibl 
than  the  one  assigned. 

The  opinions  of  the  officers  and  men,  founded  on  various  reasons  that  are  given, 
are  too  numerous  to  be  gone  over  in  detail,  but  we  think  he  that  examines  the 
record  will  say  that  a  set  of  more  frivolous  reasons  was  never  given  on  a  trial  for 
a  man's  life.  They  are  just  of  the  character  that  distrust  always  gives  to  the 
imaginings  of  dulness,  and  would  better  become  the  gossiping  of  village  wondei 
mongers,  than  the  conjectures  of  discreet  men,  reasoning  about  human  life.  Ii 
enumerating  Captain  Mackenzie's  misconceptions  of  facts,  we  shall  incidental! 
allude  to  some  of  them. 

The  declaration  of  Small  to  Mr.  Gansevoort,  p.  33,  is  generally  thought  to  be 
one  of  the  strongest  proofs  of  Cromwell's  guilt.     We  see  nothing  in  this  deciara-  I 
tion,  even  as  it  is  given  at  second-hand,  by  Mr.  Gansevoort,  and  without  the 


OF  THE  NAVAL  COURT  MARTIAL.  307 

means  of  cross-examining  the  man  who  is  said  to  have  made  it,  to  justify  this 
opinion.  In  the  first  place,  Mr.  Gansevoort  told  Small  that  they  had  taken  more 
prisoners,  and  then  inquired  if  there  were  any  persons  forward,  from  whom  they 
had  reason  to  apprehend  danger.  Small  answered,  it  "  was  a  hard  thing  for  him 
to  say."  Two  meanings  might  be  attached  to  this  reply,  viz.,  that  it  was  diffi- 
cult for  him  to  tell  who  was,  or  who  was  not  concerned  in  the  plot,  not  knowing 
who  had  engaged  in  it,  or  that  it  would  be  hard  on  his  feelings  to  betray  his 
associates.  We  must  look  to  the  context  for  the  explanation,  and  that  clearly 
solves  the  doubt,  though  we  think  the  first  the  most  obvious  construction,  on  the 
face  of  the  answer.  Mr.  Gansevoort  goes  on,  and  asks  if  Cromwell  is  not  impli- 
cated. Small  answers  again  it  was  a  hard  thing  for  him  to  say,  and  then  h< 
on  to  reason  the  matter,  enumerating  the  motives  for  thinking  he  was.  Cromwell 
and  Mr.  Spencer  were  very  intimate ;  that  he  had  seen  the  last  give  the  other 
money,  more  than  he  would  like  to  give  or  lend  him  either.  This  is  anything 
but  reserve  of  feeling ;  it  is  a  downright  attempt  to  show  that  Cromwell  ought  to 
be  suspected,  and  demonstrates  that  SmalPs  hesitation  proceeds  from  doubts,  and 
not  from  disinclination  to  tell  everything  he  actually  knew.  Pressed  still  further, 
he  adds,  "  If  any  one  on  board  is  [in  the  plot]  he  is."  All  this  must  be  taken 
together,  or  not  taken  at  all.  Evidence  it  is  not  in  any  shape,  but  taken  in  con- 
nexion, it  leaves  only  the  fair  inference  that  Small  had  reasoned  himself  into  his 
conclusion,  not  that  he  knew  the  fact.  Nor  is  it  probable  he  did  know  it,  if  the 
views  of  the  officers  themselves  are  just,  admitting  that  Cromwell  were  actually 
concerned.  They  contend  Cromwell's  caution  was  so  great,  and  his  influence 
over  Mr.  Spencer  so  strong,  as  to  prevent  the  last  from  putting  his  name  on  the 
paper,  a  document  in  Greek,  and  exclusively  in  Mr.  Spencer's  possession,  and 
yet  not  strong  enough  to  prevent  him  from  betraying  his  name  to  others !  The 
testimony  of  Wales,  too,  goes  to  show  that  Mr.  Spencer  did  not  mention  any 
names.  He  either  had  no  more  confederates,  or  he  used  singular  caution.  It 
is  true  he  called  up  Small,  his  whole  force  most  probably,  but,  to  the  man,  before 
whom  he  is  said  to  have  laid  bare  his  whole  terrible  secret,  he  could  only  parade 
his  "  about  twenty."  He  had  gone  too  far  to  recede,  had  told  so  much  as  to  render 
it  indispensable  to  tell  everything  he  could  to  secure  his  recruit,  and,  we  think,  if 
he  had  really  possessed  any  more  allies  to  help  to  bring  about  such  a  result,  he 
would  have  produced  them;  particularly  one  as  formidable  as  Cromwell.  If  he 
had  told  Small  of  Cromwell's  adhesion,  we  think  he  would  have  told  Wales. 
They  were  to  be  officers  alike,  were  down  alike  as  certain,  and  were  entitled  to 
equal  confidence.  The  conversation,  too,  lasted  for  hours.  It  is  fair  to  presume 
he  used  the  greatest  caution,  or  that  he  had  no  confederate  but  Small. 

Then,  this  statement  comes  to  us  at  second-hand,  and  evidently  through  one 
disposed  to  believe  the  worst  of  Cromwell ;  nay,  through  one  to  whose  own  ex- 
culpation from  a  participation  in  an  act  of  the  gravest  responsibility,  the  guilt  of 
Cromwell  is  indispensable.  If  there  be  any  doubt  in  the  matter,  we  think  the 
man  who  was  hanged  without  a  hearing,  and,  beyond  all  question,  unnecessarily 
to  hanged,  has  quite  as  good  a  right  to  its  benefit  as  his  executioners.  The 
character  of  the  mind  of  a  witness  is  always  of  moment,  too,  and  never  more  so, 
than  when  he  becomes  the  vehicle  of  other  men's  thoughts.  At  p.  41,  Mr.  Gan- 
sevoort is  asked  this  question  : — 

"  Was  Mr.  Spencer,  on  the  26th  of  November  till  the  time  of  his  arrest,  en- 
gaged in  the  usual  duties  of  an  officer  of  his  station?" 

To  this  question  Mr.  Gansevoort  gives  the  following  answer  : — 


308  REVIEW  OF  THE  PROCEEDINGS 

"  I  believe  that  he  was  engaged  in  the  usual  duties  of  his  station,  except  when 
in  the  fore-top,  having  India  ink  pricked  into  his  arm,  and  his  menacing  look  on 
the  Jacob's  ladder." 

Now  a  witness  who  could  answer  such  a  question  in  such  a  manner — having 
that  answer  written  down  and  read  to  him  for  correction,  may  very  well  have 
misunderstood  Small,  especially  when  he  was  intensely  bent  on  ascertaining 
Cromwell's  guilt. 

Those  who  are  curious  in  such  matters  will  find  the  history  of  the  Jacob's  lad- 
der transaction  at  p.  32. 

We  conclude  this  point  by  referring  to  page  33,  where  it  will  be  seen  Mr. 
Gansevoort  admits  he  had  discussed  the  necessity  of  hanging  Cromwell  on  the 
2Sth,  the  conversation  with  Small  having  occurred  on  the  29th,  if  not  on  the 
•30th.  So  says  Mr.  Gansevoort ;  we  who  can  look  coolly  at  this  matter,  see  that 
jt  must  have  been  on  the  30th,  even  while  the  council  was  sitting,  as  the  prisoners 
who  alone  could  be  alluded  to  by  Mr.  Gansevoort  in  the  dialogue,  were  made  on 
the  forenoon  of  the  last  day.  When  it  is  remembered  what  was  going  on  below 
decks,  this  testimony,  to  say  the  least,  is  to  be  received  with  great  caution.  The 
fact  that  Mr.  Gansevoort  could  not  tell  when  a  conversation  was  held,  though 
•held  after  certain  prisoners  were  made,  which  time  was  well  known,  goes  to  illus- 
trate his  testimony  in  general. 

The  alleged  fact  that  Mr.  Spencer  showed  the  Greek  paper  to  Cromwell  is 
held  to  be  conclusive  evidence  of  the  latter's  guilt,  even  by  some  of  those  who 
admit  it  is  the  only  testimony.  If  this  testimony  were  clear,  and  out  of  all  con- 
troversy true,  it  would  be  insufficient  to  convict  Cromwell.  Mr.  Spencer  showed 
this  paper/to  others,  spoke  of  it  even,  declared  his  unwillingness  to  let  them  know 
its  contents,,  and,  we  fancy  their  friends  would  think  the  circumstance  a  very  in- 
adequate, explanation,  had  they  been  hanged  on  such  a  fact,  without  a  hearing! 
rl  But, .-the  man.  was  hanged  without  the  fact  of  Cromwell's  having  ever  seen  the 
papers  being  communicated  to  any  of  the  officers  !  To  this  all  the  boys  who 
speak-  on  -.the  subject,  distinctly  testify.  This  disposes  of  the  point,  so  far  as 
Captain  Mackenzie  is  concerned,  in  a  moral  sense,  out  of  all  doubt,  and  we  think 
legally  »ialst>..:. 

,»';  Let  iis.:re;ison:  a  little  on  the  testimony.  That  a  paper  was  shown  by  Mr. 
Spencer,  to  Cromwell  is  probable.  Several  boys  swear  to  having  seen  this  done 
ai,- different  times.  Other  witnesses,  however,  say  they  have  known  Mr.  Spencer 
and  , -Cromwell  take  the  stars  together,  and  to  have  been  often  employed  in  this 
urantier.  If  they;  took  the  stars  together,  calculations  probably  followed.  Edward 
English,  one .  of -ihese  boys,  says,  p.  84,  "  I  saw  him  show  a  paper  once ;  he  sat 
on  .th6-,fpresenttle;>'.Mr.  Spencer  had  a  paper  and  pencil  in  his  hand,  as  though  he 
Vf:%&  writing  down  something  that  Cromwell  had  just  told  him  ;  Mr.  Spencer  said, 
* ,.YQ§,,jT,e*j!  'that  is  all  I  saw  at  that  time."  Now,  this  boy  certainly  did  not  iden- 
tify ijie  paper, -but  was  rather  of  the  opinion  that  what  he  saw  in  court  was  not  the 
paper.  Had  he  actually iseen  the  Greek  paper  in  Mr.  Spencer's  hand,  it  is  almost 
morally  certain  he.  could  nothave  identified  it,  and  without  this  identification,  the 
testimony,  at  best,  is.  only  conjecture.  The  boy  himself,  admits  that  he  did  not 
take  particular  .notice,  that  he  was  merely  passing  the  spot,  and  it  requires  no  great 
reasoning  powers  to  see  that  his  testimony,  beyond  the  general  fact  that  he  saw  a 
p-apep,  is  of.  no  weight.  We  haye  never  seen  these  papers,  but  we  gather  they 
are  leaves  torn  from  a  blank  book,  .  -If  so  it  is  probable  more  were  torn,  leaving  a 
general  resembknce  ?ara,0pg.  all thus  used. 


ft 


OF  THE  NAVAL  COURT  MARTIAL.  309 

There  was  a  witness  of  the  name  of  Clark  who  testified  to  Mr.  Spencer's 
showing  Cromwell  a  paper  that  he  described  as  resembling  one  of  the  Greek 
papers,  before  the  court  of  inquiry,  but  who,  Captain  Mackenzie  seems  to  think, 
was  inveigled  away  before  the  sitting  of  the  court  martial.  We  have  turned  to 
this  boy's  testimony,  as  it  is  given  in  the  Tribune's  report  of  the  proceedings  of 
the  court  of  inquiry,  but  do  not  find  it  more  to  the  point,  than  that  of  the  boys 
who  testified  before  the  court  martial.  One  objection  to  the  statement  of  the  boy, 
as  given  in  the  newspaper,  is  this  :  Mr.  Spencer  is  said  to  have  twice  shown  the 
paper,  asking  Cromwell  the  first  time,  if  it  would  do.  Cromwell  answered,  "  it 
would  do  very  well."  The  boy  saw  Mr.  Spencer  show  Cromwell  the  same  paper 
a  second  time.  "  Cromwell  said  it  was  better."  "  Spencer  pointed  with  his 
finger  to  the  paper,  but  did  not  hear  him  say  anything." 

Now,  as  this  boy  heard  Mr.  Spencer  ask  "if  it  would  do?"  and  heard  Crom- 
well's answers  both  times  the  paper  was  shown,  it  follows  he  was  near  enough  to 
hear  what  passed.  The  reader  will  see  at  once  it  will  leave  the  necessity  of  be- 
lieving that  Cromwell  understood  the  Greek  character,  or  the  paper  could  not  have 
been  the  Greek  paper.  This  is  not  all  ;  the  real  paper  is  far  more  difficult  to  read 
than  real  Greek.  It  is  written  in  a  mystified  Greek  character,  as  applied  to  Eng- 
lish words.  One  English  letter  is  used  for  another  Greek  letter;  thus  the  name 
of  M'Kinley  is  spelled  M'Kenlu.  These  departures  from  as  close  analogies  as 
the  two  alphabets  would  allow,  run  through  both  papers,  and  would  embarrass 
even  a  scholar  in  reading  them.  To  suppose,  however,  that  Cromwell  could 
read  these  papers  is  absurd  ;  and  to  show  them  to  a  man  who  could  not  read 
them,  without  translating  them,  is  equally  absurd.  The  only  argument  that  is 
left  therefore,  in  connexion  with  this  point,  is  to  suppose  that  Mr.  Spencer  laid 
these  papers  before  Cromwell  to  help  his  own  memory,  while  he  made  his  own 
oral  explanations.  Much  of  the  testimony  is  opposed  to  this  inference,  though 
one  circumstance  has  been  thought  to  show  Mr.  Spencer  was  writing  down  the 
names  of  the  crew,  at  Cromwell's  dictation.  As  respects  Clark,  however,  it  is 
necessary  to  believe  Cromwell  could  read  the  paper,  for  hearing  so  much,  he 
must  have  heard  more,  had  more  been  uttered.  There  are  several  objections 
to  the  supposition  of  the  dictation  of  names.  Some  of  these  exhibitions  of  the 
papers  to  Cromwell  are  said  to  have  occurred  some  time  before  the  arrest,  and,  in 
the  nature  of  things,  a  paper  like  the  programme  must  be  constantly  undergoing 
alterations.  Thus  it  is  shown  that  Mr.  Spencer  was  writing  on  a  paper  sup- 
posed to  be  one  of  the  Greek  papers,  as  late  as  the  very  day  on  which  he  was 
arrested,  a  circumstance,  which,  in  itself,  must  destroy  the  apparent  identity  with 
a  paper  seen  any  number  of  days  before.  This  fact,  of  itself,  would  be  fatal 
to  the  evidence  of  the  boys,  since  a  paper  that  has  been  altered,  where  there  are 
no  means  to  prove  what  alterations  have  been  made,  can  never  be  received  in 
proof.  Now,  it  is  probable  that  Cromwell  corrected  Mr.  Spencer's  mathematical 
calculations,  and  there  is  no  violent  improbability  in  supposing  that  this  is  what 
they  were  about  when  the  boys  saw  them.  Men  turn  their  head?  when  calculating, 
and  say,  "  yes,  yes,"  when  ideas  are  given  them.  The  plus  and  minus  of  a  sum 
in  algebra,  may  have  been  the  crosses  and  Greek  characters  of  the  boys ;  or,  Mr. 
Spencer  may  have  really  had  some  of  his  "  nor-westers"  on  paper,  as  well  as  the 
programme  of  the  mutiny.  The  circumstance  that  he  drove  some  of  the  boys 
away  when  they  attempted  to  overlook  him,  proves  nothing.  Officers  are  not 
apt  to  submit  to  such  impertinence  from  a  crew.  Clark's  testimony,  as  we  find  it, 
would  seem  to  establish  that  it  was  not  the  Greek  paper  he  saw,  and  another  pa- 
per being  shown  to  be  used,  upsets  all  the  theories  about  these  papers. 


310  REVIEW  OF  THE  PROCEEDINGS 

But  the  fatal  objection  to  these  papers,  is  the  admitted  circumstance  that  the 
officers  knew  nothing  about  them  until  the  brig  had  reached  New  York  !  They 
were  not  included  in  the  case,  as  it  was  made  up  for  Captain  Mackenzie's  con- 
sideration on  the  1st  December,  1842. 

Next  all  the  objections  present  themselves,  that  are  unavoidably  connected 
with  the  probabilities  of  the  boys  having  imagined  much  that  they  have  sworn  to. 
The  main  facts  may  be  true,  but  the  collaterals  colored  or  supposed.  Here  the 
ill-judged  course  of  the  department,  in  leaving  these  witnesses  under  the  military 
control  of  those  whose  professional  prospects,  at  least,  were  more  or  less  de- 
pendant on  their  testimony,  becomes  vividly  apparent.  The  fact  that  Captain 
Mackenzie  virtually  asked  to  be  left  in  command  of  his  brig — a  new  proof  of  that 
officer's  weakness  of  judgment — ought  to  have  brought  the  whole  subject  before 
the  secretary's  mind,  and  it  is  extraordinary,  one  who  has  been  a  judge  did  not 
foresee  the  importance  of  immediately  removing  all  who  advised  the  execu- 
tion,, from  the  Somers.  This  should  have  been  done  even  in  the  interest  of 
Captain  Mackenzie,  who,  under  such  circumstances,  would  have  been  in  a 
much  more  eligible  position  than  that  he  now  occupies.  We  think  it  is  impossi- 
ble to  read  the  testimony  of  these  boys,  and  not  believe  that  they  have  fancied 
much  of  that  to  which  they  swear.  We  shall  presently  show  how  loosely  they 
testify. 

Another  great  objection  to  this  testimony  of  the  papers  alleged  to  have  been 
shown  to  Cromwell,  is  that  a  man  who  has  been  hanged  without  a  hearing,  is 
asked  to  prove  a  negative !  Why  was  not  this  man  questioned  on  the  facts  sup- 
posed to  be  connected  with  his  guilt  ?  Throwing  in  everything  that  has  been 
brought  against  him,  there  is  nothing  but  circumstantial  evidence.  Now,  all  cir- 
cumstantial proof  falls  short  of  absolute  proof;  in  its  nature,  it  is  ever  susceptible 
of  explanation.  A  man  was  once  hanged  in  England,  because  he  was  found  draw- 
ing a  knife  out  of  a  dead  man's  body.  In  the  end  it  was  admitted  that  another 
person  put  it  in,  and  that  the  man  first  hanged  was  innocent.  A  few  additional 
circumstances,  added  to  the  leading  circumstance  mentioned,  cost  an  innocent 
man  his  life.  Just-minded  men,  are  not  apt  to  punish,  on  any  evidence  short  of 
that  of  their  own  senses,  without  a  hearing ;  on  circumstantial  testimony,  NEVER. 
Which  of  us  would  flog  a  child,  discharge  a  servant,  or  a  dependant  of  any  sort 
on  circumstantial  evidence,  without  giving  the  party  implicated  a  hearing?  In 
cases  in  which  his  legal  rights  were  ample,  we  think  no  man  of  a  rightly-balanced 
mind — certainly  no  man  fit  to  command  a  vessel-of-war — would  do  such  a  thing. 
How  was  it  with  Cromwell  ? 

Cromwell  was  put  in  irons  on  the  27th  November.  On  the  28th  the  neces- 
sity of  his  death  began  to  be  the  subject  of  conversation.  On  the  morning  of 
the  30th  it  was  deliberately  referred  to  a  council  of  the  officers.  About  ten,  on 
the  morning  of  the  1st  December,  the  report  of  the  council  and  the  evidence 
were  laid  before  the  commander,  and  about  one,  P.  M.,  the  man  was  hanged. 
Now,  in  all  this  time,  there  is  no  evidence  that  Cromwell  was  asked  if  he  could 
explain  a  single  circumstance,  while  there  is  a  good  deal  of  evidence  that  leaves 
reason  to  suppose  he  was  not.  If  he  were,  Captain  Mackenzie's  report  is  dis- 
ingenuous— nay,  virtually,  false  ;  if  he  were  not,  in  the  name  of  holy  justice, 
what  are  we  to  think  of  the  transaction  !  We  make  no  doubt,  Cromwell  was  not 
questioned  at  all.  Small  was  questioned  about  his  guilt,  but  the  man  himself 
had  not  even  a  hearing  that  he  might  assert  his  innocence.  Time  did  not  press  ; 
circumstances  did  not  press ;  there  sat  the  prisoner,  for  weary  days  and  nights, 


OF  THE  NAVAL  COURT  MARTIAL.  311 

almost  within  reach  of  his  superior's  arm,  and  he  was  sent  to  the  gallows  un- 
questioned, on  purely  circumstantial  evidence.  On  circumstantial  evidence  was 
this  man  hanged,  unheard,  and  evidence  that  would  scarcely  have  justified  a 
magistrate  on  shore  for  recommitting  him  for  further  examination.  When  the  act 
is  done,  when  the  press  has  thrown  itself  with  malignant  fury  into  the  controversy, 
when  men  begin  to  talk  of  vindicating  the  laws  of  the  land,  weeks  after  the  deed, 
the  witnesses  having  been  shut  up  most,  if  not  all,  the  time  under  the  military  au- 
thority of  those  involved  in  the  issue,  eight  or  ten  boys  are  brought  forward,  for 
the  first  time,  to  give  their  recollections  under  the  influence  of  all  these  occur- 
rences. We  can  make  our  own  conjectures  concerning  these  papers,  and  far 
more  plausible  conjectures  they  would  be,  than  those  assumed  by  the  defence, 
but,  they  must  ever  remain  conjectures.  The  only  two  who  could  give  us  a  cer- 
tain clue  to  the  truth,  are  dead,  unheard. 

It  may  be  well  to  add  that  one  of  the  boys  swears  that  the  paper  he  saw  had 
crosses  on  it,  instead  of  the  ordinary  letters.  Greek  characters  no  more  resemble 
crosses  than  do  our  common  English  characters. 

On  the  other  hand,  are  there  no  proofs,  no  presumptions  of  innocence  ?  Yes, 
abundance.  In  the  first  place,  the  project  was  too  wild,  too  impracticable,  for  a 
man  of  Cromwell's  years,  experience,  and  knowledge,  to  embark  in.  With  the 
ocean  dotted  with  cruisers,  including  steamers,  a  few  weeks  must  have  terminated 
the  career  of  the  Somers,  and  with  it  that  of  her  crew.  The  remark  Mr.  Spen- 
cer is  said  to  have  made,  when  he  first  told  Mr.  Gansevoort  of  Cromwell's  inno- 
cence, manifests  far  more  knowledge  of  human  nature  than  is  shown  by  the  officers 
of  the  Somers.  "  I  did  not  think  he  would  join  unless  there  were  money  on  board" 
One  can  understand  that  such  a  man  as  Cromwell  has  been  described  to  be,  might 
run  away  with  money,  but  what  could  he  do  with  the  Somers  ?  As  for  keeping 
at  sea,  any  length  of  time,  in  the  present  state  of  the  world,  it  is  out  of  the  ques- 
tion, and  two  or  three  acts  of  piracy,  would  have  brought  the  vessel  to  the  notice 
of  every  marine  in  Christendom,  and  insured  her  capture.  Dead  men  do  tell 
tales.  It  is  possible  that  one,  inexperienced  as  Mr.  Spencer,  may  not  have  seen 
this ;  Small  is  almost  admitted  to  have  been  of  feeble  mind,  but,  it  was  different 
with  Cromwell.  The  last,  had  he  been  rascal  enough  to  embark  in  such  a  scheme, 
was  probably  not  fool  enough.  Then,  he  was  just  married,  manifested  strong 
regard  for  his  wife  on  more  than  one  occasion,  particularly  in  connexion  with 
the  $15,  and  his  dying  words,  and  was  not  a  mere  reckless  wanderer  on  the  earth. 
Until  the  contrary  is  proved — not  asserted,  merely — he  has  just  as  good  a  right  to 
be  placed  in  the  category  of  those  who  have  friends  and  homes  as  pledges  of  their 
conduct,  as  Captain  Mackenzie  himself. 

As  for  the  attempt  to  drag  in  a  particular  speech  of  Cromwell's  (before  the 
court  of  inquiry),  in  order  to  show  his  general  indifference  to  virtue,  and  in  con- 
nexion with  his  wife,  we  can  hardly  trust  ourselves  to  write  about  it.  It  was 
unknown  to  Captain  Mackenzie  when  he  hanged  the  man,  in  the  first  place. 
Then,  such  language  is  common  in  the  mouths  of  common  sailors,  and  passes 
for  mere  bravado.  We  have  heard  it  often,  almost  verbatim,  and  from  men 
whom  we  knew  felt  differently.  The  excuse  for  thus  harrowing  the  feelings  of 
a  woman  who  may  have  been  perfectly  innocent,  nay,  who  is  said  to  be  respecta- 
ble, was  to  destroy  the  sympathy  of  the  public  in  the  fate  of  her  husband ! 
Captain  Mackenzie  could  not  destroy  this  sympathy  by  his  evidence  of  guilt, 
what  sort  of  case  has  he  ?  The  very  attempt  to  defend  himself  by  such  means 
denotes  a  consciousness  of  weakness.  His  act  had  been  committed,  and  he  was 


312  REVIEW  OF  THE  PROCEEDINGS 


bound  to  justify  it  by  direct  and  unequivocal  evidence ;  not  by  harrowing  the 
feelings  of  a  woman.  We  have  heard  much  of  the  honor  of  the  service,  in  con- 
nexion with  this  mutiny.  We  will  tell  these  gentlemen  who  have  used  this 
language,  that  the  credit  of  the  navy  was  quite  as  much  connected  with  the  ex- 
clusion of  such  unmanly  testimony,  as  in  vaporing  about  the  ability  of  a  man-of- 
war's  being  able  to  take  care  of  herself.  The  imputation  itself  is  amply  rebuked 
by  the  language  of  the  dying  man  concerning  his  wife.  Captain  Mackenzie  says 
he  invoked  the  name  of  his  wife ;  but,  M'Kinley  swears  he  invoked  the  "God  of 
the  Universe  to  look  down  upon  his  wife." 

Cromwell  manifested  no  concern  after  his  arrest.  This  fact  is  admitted,  and  tor- 
tured into  evidence  of  his  expecting  a  rescue.  His  unconcern,  ironed  as  he  was, 
hands  and  feet,  we  take  to  be  proof  of  innocence.  Had  there  been  an  attempt 
at  rescue,  he  would  probably  have  been  the  first  man  shot,  and  this,  we  think  he 
must  have  known. 

Then  Mr.  Spencer  asserted  his  innocence  twice,  certainly  ;  how  much  oftener, 
it  is  out  of  our  power  to  say.  He  did  this  once,  with  his  explanations  ;  and  once 
when  he  had  been  told,  himself,  that  he  had  but  ten  minutes  to  live.  The  last 
assertion,  coming  through  the  evidence  it  does,  is  admitted  to  have  been  solemn, 
full,  and  earnest.  Captain  Mackenzie  confesses  it  staggered  even  him !  Was 
the  proof  against  Cromwell,  then,  so  light,  that  mere  assertions  of  innocence  could 
shake  it  ?  What  sort  of  proof  was  this  ?  It  was  very  much  of  the  character  of 
the  proof  that  again  restored  it  to  its  original  influence,  viz. :  The  assertion  of  Mr. 
Gansevoort,  that  one  or  two  petty  officers  asserted  there  could  be  no  doubt  of  Crom- 
well's guilt,  with  something  about  the  d — d  fool's  being  on  one  arm-chest,  and 
the  d — d  rascal  on  the  other :  and  all  backed  by  such  depositions  as  the  reader 
will  find  in  the  record  !  Here  was  Mr.  Spencer,  about  to  die,  with  reason  to- 
believe  ten  minutes  would  close  his  career,  solemnly  affirming  the  innocence 
of  Cromwell,  while  he  admitted  his  own  guilt — guilt  as  respects  a  conversation 
at  least.  Cromwell,  himself,  asserted  his  innocence  to  the  last,  and  yet  the  "  no 
doubts"  of  the  deponents  before  the  council,  deponents  who  would  be  ridiculous 
but  for  the  sad  results,  is  deemed  a  sufficient  answer.  Mr.  Spencer  had  professed 
a  readiness  to  tell  all,  had  admitted  his  own  failings ;  had  said  his  Greek  paper 
went  beyond  the  facts  of  the  case,  and  yet  Cromwell's  name  was  not  on  it,  had 
not  said  a  word  in  favor  of  Small,  but  he  asserted  Cromwell's  innocence,  at  the 
moment  when  he  had  himself,  just  been  told,  he  was  in  ten  minutes  to  die !  It  is 
pitiable,  pitiable,  to  see  on  what  evidence,  all  these  strong  corroborating  circum- 
stances are  set  aside. 

Captain  Mackenzie  has  one  of  his  remarkable  reasoning  processes  for  getting 
rid  of  the  dying  assertion  of  Mr.  Spencer.  He  went  to  the  latter  and  told  him 
what  the  petty  officers  had  said,  and  he  assures  us  a  demoniacal  expression  took 
possession  of  the  young  man's  countenance.  After  this  Mr.  Spencer  said  no 
more  of  Cromwell's  innocence  !  The  two  even  passed  so  close  to  each  other  as 
to  touch,  and  yet  neither  spoke  to  the  other.  Mr.  Spencer  asked  Wales  and 
Small  to  forgive  him,  but  he  did  not  ask  Cromwell.  The  last  made  no  appeals 
to  the  first  to  come  again  to  his  succor !  This  disposes  of  the  matter. 

Now,  it  is  not  probable  that  such  arguments  were  ever  before  offered  in  defence 
of  such  a  point.  In  the  first  place,  Small  and  Wales  had  something  to  forgive  to 
Mr.  Spencer,  according  to  the  theory  of  the  mutiny,  while  Cromwell,  if  inno- 
cent, had  not.  Captain  Mackenzie  was  the  man  for  him  to  forgive,  were  he  not 
guilty.  Then  why  should  Cromwell  appeal  to  Mr.  Spencer?  This  unfortunate 
young  man  had  already  solemnly  asserted  his  innocence,  openly,  and  in  a  way  to> 


OF  THE  NAVAL  COURT  MARTIAL.  313, 

stagger  Captain  Mackenzie,  and  he  was  powerless.  He  could  not  save  his  mm 
life;  much  less  that  of  another.  Cromwell  kept  asserting  his  innocence  to  the 
last,  TO  THOSE  WHO  ALONE  COULD  RELIEVE  HIM  ;  and,  alas !  he  asserted  it  in 
vain.  THEY  HANGED  HIM  WITHOUT  ANY  OTHER  HEARING  THAN  THESE 

DYING  PROTESTATIONS  ! 

The  idea  that  Mr.  Spencer,  in  his  last  moments  had  nothing  else  to  think  of 
than  the  fate  of  Cromwell,  putting  the  demoniacal  feeling  quite  out  of  the  ques- 
tion, is  painfully  preposterous.  He  had  his  own  errors  to  absorb  his  soul,  the 
mercy  of  God  to  implore,  home,  parents,  kindred,  the  world  he  was  about  to 
quit,  and  that  he  was  about  to  enter,  to  engross  every  faculty.  The  death  of 
Cromwell  was  not  one  of  his  sins  to  press  him  down,  or  to  disturb  him ;  were 
the  man  innocent,  others  must  answer  for  that. 

Any  person  who  has  ever  had  occasion  to  investigate  a  report,  will  estimate 
the  value  of  the  testimony  that  was  given  in  this  case.  To  those  familiar  with  the 
effects  of  cross-examinations,  the  thought  that  men  were  hanged  without  a  hearing — 
and  this,  in  a  legal  sense,  is  as  true  of  Mr.  Spencer  and  Small,  as  it  is  of  Crom- 
well— must  bring  keenly  painful  pictures  to  the  mind.  We  have  seen  cases  that 
stood  plausibly  fair,  on  the  examination  in  chief,  completely  and  righteously  broken 
down,  under  the  full  investigation.  This  is  of  daily  occurrence  in  the  courts, 
and  it  shows  how  lamentably  naked  is  the  case  before  us.  It  is  no  answer  to  say, 
Captain  Mackenzie  could  not  tell  the  facts,  as  he  was  situated  ;  he  was  bound  to 
forbear,  so  long  as  the  absolute  certainty  of  all  the  points  stated  in  our  issue  was 
covered  with  any  doubts.  Fiatjustitia  mat  ccelum,  meant  in  his  case,  you  are  to 
sacrifice  the  Somers  before  you  do  an  unjust  thing.  The  preservation  of  that 
brig  was  far  from  being  the  first  object  in  morals* 

Cromwell's  asking  forgiveness  of  Mr.  Gansevoort,  adds  weight  to  his  protesta- 
tions of  innocence,  as  it  shows  he  was  not  altogether  hardened,  and  did  not  wish 
to  die  unforgiven.  To  suppose,  however,  that  he  alluded  to  the  mutiny,  infers  a 
contradiction.  He  was  probably  conscious  that  his  temper  may  have  often  vexed 
a  first  lieutenant.  The  wish  to  drag  in  this  circumstance  in  confirmation  of  guilt, 
proves  how  weak  the  defence  found  its  case  to  be. 

Our  limits  will  barely  permit  us  to  allude  to  the  guilt  of  the  four  others  men- 
tioned.    Against  Green  and  M'Kee  we  find  nothing  like  evidence  at  all.     A 
casual  remark  of  the  last  is  sworn  to,  but  it  comes  from  one  of  the  boys,  and  it 
is  not  incompatible  with  the  clearest  innocence.     Against  Green  there  is  liter- 
ally nothing,  unless  his  name's  being  on  the  list  of  doubtful  can  be  thought  proof. 
As  we  have  no  other  clue  to  the  standard  established  in  Mr.  Spencer's  mind,  on 
this  point,  than  the  characters  of  the  different  parties  and  the  proofs  against  them, 
we  must  look  to  these  for  the  explanation.     If  Wales  could  be  set  down  :i 
tain,  on  the  facts  as  made  out  by  himself,  a  perfectly  innocent  man  may  very  well  be 
supposed  to  be  doubtful.     Gedney  seems  to  be  altogether  exculpated  by  the  offi- 
cers, and  his  name  is  on  the  list;  is  even  next  to  Green's.     Howard,  also,  is 
completely  exculpated  by  Mr.  M.  Perry,  certainly,  nnd  he  is  on  the  same  list. 
As  respects  Wilson  and  M'Kinley  we  find  nothing  to  criminate  them,  but  the  tos- 
timony  of  Tyson.    See  record,  p.  111.    Even  this  does  not  prove  that  the  ln*t  oui^ht 
to  be  down  as  certain,  BUT  THE  CONTRARY.     If  M'Kinley  preferred  a  9! 
any  other  scheme,  it  shows  he  had  not  enlisted  in  the  alleged  conspi 
record,  p.  111.     In  our  analysis  of  testimony,  we  shall  show  how  Tyson  i: 
tradicted,  on  a  material  point,  by  Sears.     We  attach  little  importance  to  1: 
timony,  which  is  improbable  on  its  face.     But  these  four  men  were  in  irons  ;  had 

40 


314  REVIEW  OF  THE  PROCEEDINGS 


submitted  themselves,  and  could  not  effect  their  own  release,  much  less  rescue 
the  three  others. 

As  respects  the  dagger,  its  appearance  in  the  vessel  is  explained  by  the  testimony 
of  the  purser,  who,  it  seems,  bought  it  himself,  and  gave  it  to  M'Kinley,  who 
subsequently  sold  it  to  Wilson.  This  very  affair  of  the  dagger  shows  the  value 
of  reports  and  conjectures,  on  the  one  hand,  and  the  importance  of  cross-exami- 
nations, on  the  other.  It  is  one  of  the  most  startling  facts  in  Captain  Macken- 
zie's report,  and  yet,  when  explained,  it  is  literally  nothing. 

There  is  a  point  connected  with  the  guilt  of  all  the  prisoners,  exclusively  of 
those  who  were  executed,  that  is  really  inexplicable.  Four  were  put  in  irons  at 
sea,  because  it  was  thought  there  was  danger  of  their  rescuing  the  three  originally 
arrested.  Several  more  were  put  in  irons,  as  soon  as  the  brig  got  in.  Captain 
Mackenzie  speaks  decidedly  of  the  guilt  of  several  of  these  men,  as  in  the  follow- 
ing language,  p.  201,  viz.: — 

"  M'Kinley  also  down  among  the  certain,  AND  BEYOND  A  DOUBT  CORRECTLY, 
was  now  arrested."  Well,  this  man  M'Kinley,  after  remaining  weeks  and  weeks 
in  irons,  was  discharged  by  habeas  corpus,  because  imprisoned  without  any  charges. 
He  actually  appeared  as  a  witness  on  the  trial,  and  has  never  been  even  prosecuted  ! 
The  strongest  case  of  guilt  among  the  surviving  conspirators,  one  THAT  ADMIT- 
TED OF  NO  DOUBT,  is  allowed  to  pass  unpunished,  even  unprosecuted.  Captain 
Mackenzie  had  every  inducement  of  duty  and  self-respect  to  demonstrate  the 
truth  of  what  he  had  officially  reported,  and  yet  the  offender  goes  harmless. 
Observe  the  remarkable  dilemma  in  which  the  country  is  placed,  before  the 
nations.  Three  men  are  hanged  by  an  American  vessel-of-war,  without  trial  or 
hearing,  because  they  were  ringleaders  in  a  mutiny,  and  it  was  certain  there  was 
so  much  danger  of  a  rescue  by  their  fellows,  as  to  create  a  necessity  for  the  exe- 
cution. We  did  arrest  four  of  the  most  dangerous  of  the  other  conspirators,  but 
we  were  obliged  to  stop  there,  as  we  had  not  room  to  keep  more  prisoners,  or 
officers  to  watch  them.  Well,  the  vessel  is  saved,  she  reaches  port,  comes 
within  the  complete  protection  of  the  law,  when  the  guilty  are  permitted  to  go 
at  large,  and  the  justice  of  the  country  remains  unvindicated.  So  long  as  you 
are  beyond  law,  the  gallows  is  active ;  but  justice  sleeps,  in  America,  the  instant 
she  assumes  the  forms  of  legality  !  Not  only  was  Captain  Mackenzie's  reputation, 
and  those  of  his  officers,  concerned  in  the  due  punishment  of  the  remaining  muti- 
neers, but  the  character  of  the  country.  We  all  know  they  have  not  been  ;  we  all 
know  no  attempt,  even,  has  been  made  to  bring  them  to  trial.  The  correspond- 
ence given  at  the  end  of  the  record,  p.  245,  substantially  tells  the  story. 

The  evidence  abounds  in  material  contradictions,  proving  beyond  a  question, 
its  general  want  of  precision  and  value.  Take  the  case  of  the  mast,  as  an  instance. 
King,  who  is  an  out-and-out  witness  for  the  defence,  says,  p.  145  :  "  The  order 
on  that  occasion,  was  to  '  haul  through  the  slack  of  the  weather-royal-brace,  and 
to  leave  the  lee  one  slack.'  "  He  meant,  doubtless,  the  "  weather  main-royal- 
brace."  There  can  not  well  be  a  mistake  about  such  an  order.  Either  the  man 
heard  it,  or  he  invented  it. 

Mr.  O.  H.  Perry  says,  p.  173  :  "  The  order,  as  I  understood  it,  was  '  A  SMALL 
PULL  of  the  weather  main-royal-brace.' '  It  is  worthy  of  remark  that  this  young 
gentleman  says,  same  page,  that  he  told  the  commander,  as  he  thought,  that  he 
understood  the  order  to  have  been  "  to  HAUL  on  the  brace."  M'Kinley,  who  says 
he  was  near  Mr.  O.  H.  Perry,  on  the  forecastle  at  the  time,  says  that  the  order  from 
aft  was  to  "  haul  on  the  weather  rnain-royal-brace ;"  adding,  however,  that  he 


OF  THE  NAVAL  COURT  MARTIAL.  315 

did  not  remember  the  exact  words,  but  that  "Mr.  O.  H.  Perry  gave  orders  for 
half  a  dozen  to  clap  on  the  brace"  See  record,  p.  178. 

Now,  Mr.  Hays,  the  officer  who  gave  the  order,  says  "  I  gave  the  order  to  let 
go  the  weather  main-royal-brace."  Page  211. 

King  swears  as  positively,  and  with  as  much  confidence  to  this  order,  even  as 
to  particulars,  as  to  any  other  fact.  M'Kinley  admits  he  could  not  give  the 
words  of  the  order  from  aft,  but  swears  precisely  to  the  order  of  Mr.  O.  H.  Perry. 
This  young  gentleman,  himself,  confesses  he  told  the  commander  he  understood  the 
order  differently  from  what  he  had  actually  understood  it  to  be,  and  Mr.  Hays  says 
farther,  p.  211,  that  he  had  heard  Mr.  O.  H.  Perry  say  afterward,  that  he  had 
understood  the  order  to  be  to  "haul  on  the  weather  main-royal-brace."  Mr.  O.  H. 
Perry,  p.  173,  says  he  "  passed  the  order  for  a  small  pull  of  the  weather  main-royal- 
brace,"  which,  by  referring  to  Mr.  Hays's  testimony,  it  will  be  seen,  WAS  NOT 

THE    ORDER    TO    BE    PASSED. 

Inglis,  one  of  the  witnesses,  who  swears  to  have  seen  Mr.  Spencer  show  Crom- 
well a  paper,  &c.,  p.  109,  says  that  "  Small  and  W.  A.  King  went  to  the  brace, 
Mr.  Rodgers  was  officer  of  the  deck."  "  The  orders  were  given  by  Mr.  Rodgers. 
I  believe  they  were  to  lake  a  small  pull  on  the  weather  main-royal  brace." 

Q.  "  Did  you  see  King  and  Small  pulling?" 

A.  "  Yes,  sir." 

Q.  "  Did  King  stop  pulling  at  the  order  to  belay  ?" 

A.  "Yes,  sir;  he  was  holding  on  behind-hand.     Small  was  swigging  off." 

Q.  "  Where  was  Small  when  the  order  was  given  to  pull,  sitting,  or  stand- 
ing?" 

A.  "  In  the  starboard  gangway,  he  was  sitting  on  the  gun-slide." 

King  also  says,  page  145,  in  answer  to  a  similar  question,  "  Cromwell  and 
Small  were  sitting  on  the  bitts" 

Inglis  says  farther,  p.  110,  that  Cromwell  "was  on  the  forecastle." 

Corney  says,  p.  98,  "  Small  was  with  me,  he  was  seated  on  the  biffs.  The 
officer  of  the  deck  said  '  a  small  pull  at  the  weather  main-royal-brace  ;'  /  went 
to  it,  and  Small  came  too,  and  we  were  hauling  on  it,  and  the  officer  of  the 
deck  said  '  Belay,'  &c.,  &c.  He  [Small]  was  standing  about  two  feet  off, 
that  is,  two  feet  from  the  bitts,  when  the  order  was  given  to  pull  upon  the  brace." 

On  such  testimony  it  is  attempted  to  justify  the  hanging  of  a  man  without  a 
hearing  !  This  affair  of  the  mast  was  the  turning  point  of  the  danger.  It  is 
probable  that  Mr.  O.  H.  Perry  did  give  an  order  to  haul  upon  the  brace,  siftce 
Mr.  Hays  swears  he  heard  him  say  after  all  was  over  that  he  so  understood 
the  order,  and  because  he  admits  himself,  that  he  thought,  he  had  told  the  com- 
mander that  he  so  understood  the  order.  As  for  King's  testimony,  it  is  difficult 
to  find  any  medium  in  his  account  of  the  order,  between  truth  and  invention. 
Small  probably  heard  an  order  to  "haul  on  the  brace,"  and  acted  under  the  know- 
ledge that  he  was  a  suspected  man,  he  having  been  sent  for  to  the  quarter-deck 
and  questioned,  at  the  time  of  Mr.  Spencer's  arrest ;  a  fact,  Captain  Mackenzie 
has  entirely  omitted  in  his  report.  There  is  not  the  least  evidence  that  Crom- 
well had  anything  to  do  with  the  matter,  at  all.  King,  the  Dinner's  mate,  swears 
he.was  seated  near  Small  on  the  bitts,  but  Corney  denies  it,  says,  in  one  place, 
Small  was  not  seated  at  all,  and  Inglis,  the  boy,  says  he  saw  Cromwell,  at  the 
time,  and  he  was  on  the  forecastle. 

Again:  At  p.  62,  Mr.  M.  Perry  is  asked,  by  Captain  Mackenzie,  to  describe 
"the  manner  of  the  prisoners  during  their  confinement?"  Here  is  his  answer: 


316  REVIEW  OF  THE  PROCEEDINGS 

"It  appeared  to  be  perfectly  easy;  that  they  feared  nothing;  IT  APPEARED  AS 

IF    THEY    EXPECTED    A    RESCUE.         Mr.    Spencer    Was    GENERALLY    TRYING    TO 

LOOK  FORWARD  AMONG  THE  CREW,  against  positive  orders,  and  ALL  showed 
a  confidence,  APPARENTLY  AS  IF  THEY  THOUGHT  THERE  WOULD  BE  A  RES- 
CUE." Any  one  can  see  this  is  proving  too  much.  Mr.  Perry  may  have  thought 
the  confidence  of  which  he  speaks  proceeded  from  this  cause,  but  how  can  he 
know  it  ?  We  will  now  put  this  statement  in  contrast  with  that  of  Captain  Mac- 
kenzie, himself;  see  record,  pp.  199,  200:  "Having  noticed  Mr.  Spencer's 
attempts  to  hold  intelligence  with  the  crew.  I  directed  all  the  prisoners  should  be 
turned  with  their  faces  aft.  I  also  directed  that  no  tobacco  should  be  furnished," 
&c.  As  Mr.  Spencer's  efforts  to  "  look  forward,"  as  described  by  Mr.  Perry 
must  refer  to  a  time  after  Mr.  Spencer's  face  was  turned  aft,  this  establishes  the 
fact  that  he  and  Captain  Mackenzie  refer  to  the  same  period.  Now,  for  the  main 
circumstance.  "  The  day  after  Mr.  Spencer's  tobacco  was  stopped,"  adds  Cap- 
tain Mackenzie,  p.  200,  "his  spirits  gave  way  entirely,  HE  REMAINED  THE 

WHOLE    DAY    WITH  HIS    FACE    BURIED    IN    HIS    GREGO,    and  when    it  W3S  FOR  A 

MOMENT  raised,  IT  WAS  BATHED  IN  TEARS  !"  We  shall  not  pretend  to  say 
which  of  these  statements  is  true,  but  it  is  evident  one  is  not. 

At  p.  134,  Mr.  Rodgers  says  that  Mr.  Spencer  "  appeared  embarrassed ,"  when 
questioned  about  carrying  his  day's  work  in  his  neck-hankerchief.  Captain 
Mackenzie,  in  reference  to  the  same  inquiry,  says,  p.  197  :  "It  is  a  convenient 
one,"  he  replied,  "with  an  air  of  bland  deference"  Here  two  of  the  officers 
differ  so  much  as  to  view  an  appearance,  and  two  thirds  of  the  mutiny  rests  on 
appearances,  one  as  embarrassment,  the  other  as  bland  deference. 

Mr.  M.  Perry  is  asked  if  he  saw  Cromwell  aloft,  and  what  he  was  doing,  p. 
63.  Answer :  "  I  observed  Cromwell  and  Wilson ;  Wilson  was  on  the  main- 
top-sail yard,  doing  nothing ;  Cromwell  on  the  cap  at  work."  This  contradicts 
various  accounts  that  Cromwell  was  doing  nothing.  Cromwell  and  Wilson  were 
the  only  two  aloft,  until  Anderson  was  sent  up,  who  did  not  regularly  belong 
there.  Cromwell  probably  went  aloft,  because  it  was  extra  service,  in  which 
some  one  was  wanted  to  lead,  and  there  was  nothing  out  of  the  way  in  an  active 
young  man,  like  Wilson,  going  aloft,  on  such  an  emergency.  The  supposition 
that  a  man  on  the  top-sail-yard  could  be  plotting  with  another  on  the  cap,  is  an 
absurdity.  Their  heads  must  have  been  ten  or  fifteen  feet  asunder. 

It  will  be  seen  at  p.  84,  that  the  boy  English  did  not  recognise  the  Greek 
papers,  as  those  he  had  seen  Mr.  Spencer  show  to  Cromwell.  He  at  first  says  : 
"I  should  know  the  papers,  I  should  know  the  color;"  and  when  the  paper  is 
shown  him,  he  says,  "  It  appears  to  me  the  other  was  yellower  than  this  ; 
I  could  not  say  certain."  Captain  Mackenzie,  who  was  examining  him  in  chief, 
then  asked  him  if  these  were  the  papers  shown  him  at  the  court  of  inquiry,  where 
we  understand  he  swore  distinctly  to  the  papers.  The  answer  was :  "  /  think 
the  paper  shown  me  at  the  court  of  inquiry  looked  yellower;  I  could  not  say  for 
certain;  they  might  be  the  same."  To  us  it  appears  evident,  the  boy  expected 
to  be  put  to  a  severer  ordeal  than  he  had  met  before  the  court  of  inquiry,  and, 
not  knowing  the  paper  in  fact,  was  afraid  of  committing  himself.  It  will  afford 
some  proof  of  the  manner  in  which  this  case  has  been  sustained,  if  we  add  that 
attempts  were  made  in  some  of  the  journals  to  explain  away  this  failure  of  En- 
glish, to  recognise  the  papers,  by  saying  that  the  cabin  of  the  North  Carolina, 
where  the  court  of  inquiry  sat,  was  darker  than  the  room  in  which  the  court  was 
then  convened,  and  consequently  that  the  paper  looked  yellower  in  the  first,  than 


OF  THE  NAVAL  COURT  MARTIAL.  317 

in  the  last.  This  silly  reasoning  seemed  very  satisfactory  to  certain  minds. 
The  point  for  English  to  establish  was  whether  the  paper  he  then  saw,  were  the 
same  he  had  seen  Mr.  Spencer  show  to  Cromwell,- when  all  the  parties  were  in 
the  open  air  !  Nothing  is  clearer  than  that  English  could  have  recognised  the 
papers,  if  he  actually  knew  them.  Besides,  he  distinctly  admits  he  did  not  take 
particular  notice  of  the  papers  he  saw  Mr.  Spencer  show  Cromwell,  and  it  follows 
he  could  not  identify  them. 

Tyson  is  much  the  most  important  witness,  next  to  Wales,  to  sustain  Captain 
Mackenzie.  He  swears  to  a  fact,  a  rare  thing  in  the  case,  which  rests  principally 
on  opinions ;  and  what  is  more,  he  swears  to  it,  previously  to  the  executions  : 
whereas,  the  evidence  about  the  handspikes,  the  knife,  the  papers,  and  indeed  two 
thirds  of  all  that  appears,  is  produced  only  after  the  brig  has  reached  New  York. 
The  substance  of  this  testimony  was,  p.  155,  that  on  the  evening  of  the  25th,  he 
overheard  a  conversation  between  M'Kinley  and  Wilson,  the  substance  of  which 
might  very  well  give  Captain  Mackenzie  reason  to  infer  they  were  connected  with 
the  mutiny,  if  mutiny  there  were,  and  justify  him  in  arresting  the  men.  The 
objections  are,  that  the  men  were  arrested  before  the  evidence  was  given,  and  that 
the  evidence  may  have  been  in  consequence  of  the  arrests,  instead  of  the  arrests 
being  in  consequence  of  the  evidence  ;  and  that  this  testimony  of  Tyson's  makes 
M'Kinley  say  he  preferred  going  in  a  slaver,  to  embarking  in  the  enterprise  which 
is  supposed  to  be  the  mutiny,  M'Kinley  being  one  of  Mr.  Spencer's  four  certain 
men.  If  Captain  Mackenzie  believed  Tyson,  we  think  he  was  bound  to  suppose 
the  Greek  paper,  so  far  as  it  related  to  M'Kinley,  a  very  unsafe  document  to  hang 
men  on.  But  M'Kinley  distinctly  denies  that  the  conversation  took  place  as 
represented,  though  he  admits  he  and  Wilson  did  converse  together,  for  a  few 
minutes,  near  the  place  indicated,  and  on  that  night.  It  is  then  a  question  of 
veracity,  and  the  characters  of  the  witnesses  become  material. 

It  has  been  stated  to  us  that  Sears  and  Anderson  were  the  two  most  truthful 
witnesses  who  were  examined  among  the  crew.  The  former  and  Tyson  testify 
•to  what  occurred  in  an  interview  between  themselves  and  Cromwell  and  Small, 
at  the  bitts,  just  after  Mr.  Spencer's  arrest.  The  testimony  of  Tyson,  on  the 
this  point,  will  be  found  at  p.  111.  He  swears  distinctly  that  Cromwell  told 
him  that  the  arrest  was  for  "  a  supposed  mutiny,"  and  then  went  on  to  tell  him 
that  "  it  was  a  plan  to  kill  the  captain  and  officers,  and  take  the  vessel."  On  a 
cross-examination  he  adheres  to  these  facts.  Now  Sears  swears  it  was  Small 
who  gave  the  answer,  and  not  Cromwell,  pp.  115,  116.  This  raises  a  great 
doubt  of  the  accuracy  of  Tyson's  statement.  This  doubt  is  increased  when  he 
comes  to  be  cross-examined  about  the  affair  of  the  conversation  between  M'Kin- 
ley and  Wilson,  p.  112.  Here  he  says  he  was  lying  near  a  gun,  when  the  two 
approached  and  turned  him  over,  and  spoke  to  him,  after  which  they  went  on  to 
hold  the  conversation  mentioned,  within  three  feet  of  him.  Now,  he  swears  that 
he  had  had  a  quarrel  with  Wilson,  that  M'Kinley  commenced  the  discourse  by  a 
caution  to  Wilson  on  the  subject  of  spies,  then  turned  him  over,  conversed  with 
him,  and  thenwent  onwith  the  other  conversation  I  This  is  certainly  very  improbable. 
Judging  from  Tyson's  testimony  we  should  think  him  an  unsafe  witness.  He 
says  the  dialogue  took  place  about  seven  in  the  morning,  when  it  was  not  very 
light :  before  the  moon  had  risen.  This  was  on  the  night,  or  morning  of  the 
26th  November.  As  the  executions  took  place  in  latitude  seventeen  degrees 
thirty-four  minutes,  five  days  later,  and  the  brig  was  standing  west-northerly, 
she  must  have  been  in  about  twelve  north  latitude,  where  a  degree  of  longitude 


318  REVIEW  OF  THE  PROCEEDINGS. 

measures  but  two  or  three  statute  miles  less  than  on  the  equator.  The  sun  con- 
sequently, would  have  been  up,  before  seven.  In  a  word,  the  whole  of  this 
young  man's  evidence  strikes  us  as  very  questionable,  so  far  as  regards  details. 
If  true,  however,  it  puts  M'Kinley  among  the  doubtful,  instead  of  among  the  cer- 
tain. 

Snyder  was  a  witness  for  the  defence.  Page  224,  he  swears :  "  Mr.  Spencer 
asked  him  [Cromwell],  how  he  thought  the  brig  would  do  for  a  slaver"  Captain 
Mackenzie  :  "  Did  Mr.  Spencer  ask  Cromwell  how  she  would  do  for  a  slaver  or  a 
pirate?"  Answer:  "Yes,  sir;  for  a  slaver,  or  a  pirate;  he  said  both"  Here 
Captain  Mackenzie  rested,  and  the  judge  advocate  commenced  a  cross-examina- 
tion. Question:  "When  did  you  first  tell  of  this?"  Answer:  "At  Commodore 
Perry's  house."  Question  :  "  Have  you  deserted  from  the  Somers  since  her 
arrival?"  Answer  :  "  Yes,  sir."  Question  :  "  Have  you  been  punished  for  it?" 
Answer:  "No,  sir,  not  yet ;  I  do  not  know  whether  Mr.  Spencer  said  slaver  or 
pirate;  I  can't  recollect  which  one;  he  said  one,  or  the  other."  This  is  the 
character  of  a  good  deal  of  the  evidence,  we  think. 

Any  one,  in  the  least  familiar  with  life,  will  know  how  to  appreciate  that  sort 
of  evidence  which  depends  on  the  conjectures,  distrusts,  hearsays,  and  signs,  that 
vulgar  minds  imagine,  when  they  once  begin  to  have  their  attention  called  to  any 
particular  object.  It  is  notorious  that  things  are  then  seen  which  never  had  an 
existence,  or  which  obtain  all  their  importance  from  the  imagination  of  the  ob- 
server. The  most  natural  and  innocent  acts  are  tortured  into  proofs  of  guilt,  and 
sayings,  looks,  and  gestures,  are  all  interpreted  in  a  way  to  suit  the  notions  and 
preconceived  opinions  of  the  looker-on.  This  is  just  as  true  of  things  past,  as  of 
things  present.  The  desire  to  be  of  importance  in  moments  of  excitement,  to 
know  something,  to  have  something  to  tell,  is  also  inherent  with  the  vulgar,  and 
seldom  fails  to  generate  testimony. 

One  instance  more  of  discrepant  testimony  must  suffice,  though  we  could  fur- 
nish a  hundred.  In  speaking  of  Wales,  Captain  Mackenzie  says,  p.  210,  "  I  had  a 
trifling  difficulty  with  him,  not  discreditable  to  his  character,  on  the  previous  cruise 
to  Porto  Rico."  In  reference  to  this  difficulty,  Mr.  Heiskell  was  asked,  p.  162  : 
"Was  it  of  a  delicate  nature?"  Answer:  "Yes,  sir."  Question:  "Did  it 
concern  Mr.  Wales'1  s  character  ?  Answer  :  "  After  he  had  explained  it,  I  should 
think  not."  Question:  "When  did  he  explain  it?"  Answer:  "I  do  not 
know — some  time  since,  I  believe."  Question :  "  Was  it  before  the  arrest  ?" 
Answer  :  "  I  think  Mr.  Wales  spoke  of  this  matter  before  the  arrest."  Question  : 
"  Shortly  before  the  arrest  ?"  Answer:  "  I  wo?i>t  pretend  to  fix  upon  a  time." 
At  page  23,  Wales  himself  is  asked :  "  Did  you  have  any  difficulty  with  Com- 
mander Mackenzie  at  Porto  Rico,  and  what  was  it?"  Answer:  "I  had  a  diffi- 
culty, but  decline  explaining  it"  At  p.  26,  Captain  Mackenzie  asks  Wales  if 
this  difficulty,  which  he  himself  calls  trifling,  was  not  generally  known  in  the  brig, 
evidently  to  leave  the  inference  that  on  account  of  this  trifling  difficulty  Wales, 
without  any  previous  sounding,  was  supposed  ready  to  unite  in  the  murders,  pira- 
cies, &c.,  contemplated  by  Mr.  Spencer!  In  his  report,  p.  210,  he  say  unequiv- 
ocally: "  On  that  account,  he  was  singled  out,  and  tampered  with." 

Referring  the  reader  generally  to  the  testimony,  as  the  most  satisfactory  mode 
of  ascertaining  its  value,  we  will  now  proceed  to  a  brief  analysis  of  Captain  Mac- 
kenzie's report,  as  it  is  connected  with  the  facts  that  have  been  proved.  It 
is  to  Captain  Mackenzie's  mind  and  motives  that  the  world  is  to  look  for  the 
solution  of  this  unusual  and  sad  occurrence,  and  the  best  clues  we  have  to 


OF  THE  NAVAL  COURT  MARTIAL.  319 

both  of  these,  are  to  be  found  in  his  own  account  of  the  events.  The  report 
commences  at  p.  194,  rec.  It  is  dated  December  19th,  or  eighteen  days  after 
the  execution. 

The  first  feature  that  strikes  us  in  this  report,  is  its  positiveness  on  points  about 
which  grave  doubts  exist,  after  every  opportunity  has  been  given  for  inquiry.  To 
this  may  be  added  the  habit  of  giving  to  mere  assumptions  the  force  of  proof. 
When  Cromwell  is  arrested,  Captain  Mackenzie  says,  at  p.  199,  he  was  ques- 
tioned as  to  "a  secret  conversation  he  had  held,  THE  NIGHT  BEFORE,  with  Mr. 
Spencer,  and  he  denied  having  had  the  conversation,  saying  it  was  Small. 
"  Cromwell  was  the  tallest  man  on  board,  and  Small  the  shortest,"  adds  Cap- 
tain Mackenzie.  *'  Cromwell  was  immediately  ironed,  and  Small  thus  pointed, 
out  by  AN  ASSOCIATE  to  increased  suspicion,  was  also  sent  for,  interrogated,  and 
ironed." 

We  confess  this  statement  puzzled  us.  On  its  face,  one  would  suppose  Crom- 
well, the  tallest  man  on  board,  had  been  seen  in  secret  conversation  with  Mr. 
Spencer,  after  the  latter's  arrest — a  circumstance  of  grave  import,  beyond  a  ques- 
tion, if  unexplained.  It  made  us  distrust  his  innocence,  more  than  anything  else. 
As  Mr.  Spencer  was  ironed  at  evening  quarters  (before  dark)  on  the  26th,  and 
Cromwell  was  arrested  on  the  evening  of  the  27th,  Captain  Mackenzie's  language 
admits  of  no  other  construction.  There  is  not  a  particle  of  yr oof  of  the  fact , 
and  it  would  certainly  not  have  been  overlooked  in  the  testimony,  could  so  ma- 
terial a  circumstance  be  verified.  We  can  not  even  find  any  proof  that  Cromwell 
was  questioned  at  all,  when  ironed  ;  but  that  he  had  held  a  secret  conversation 
with  Mr.  Spencer,  the  night  before,  is  as  much  disproved  as  silence  can  prove  a 
negative,  in  all  the  investigations  that  have  since  succeeded. 

Cromwell's  answer,  and  all  the  circumstances  of  the  case,  might  lead  us  to  sup- 
pose that  he  understood  Captain  Mackenzie  to  allude  to  the  conversation  between 
Small,  Wales,  &c.,  on  the  booms,  if  any  such  question  were  put  to  him.  On  this 
supposition,  Cromwell's  answer  was  perfectly  natural.  Mr.  Spencer's  arrest,  and 
its  cause,  were  known  to  Cromwell,  Mr.  Gansevoort  having  communicated  them  to 
him,  in  common  with  the  other  petty  officers ;  it  is  altogether  likely  that  Smal! 
mentioned  the  occurrence  of  his  having  had  the  conversation,  for  he  had  been 
publicly  questioned  on  the  quarter-deck  about  it,  when  Mr.  Spencer  was  ironed  ; 
and,  it  strikes  us,  Cromwell's  reply  was  just  what  might  have  been  expected. 
Captain  Mackenzie's  account,  as  it  stands,  can  hardly  be  true,  since  no  one  alludes- 
to  it  at  all,  in  the  evidence.  Still,  it  has  a  most  ominous  appearance  in  the  report, 
and  we  confess  carried  great  weight  with  us,  when  we  first  read  it.  The  point  is, 
that  Captain  Mackenzie  gives  the  department  and  the  public,  through  his  official, 
report,  reason  to  believe  that  Cromwell  had  had  a  secret  conversation  with  Mr. 
Spencer,  after  the  latter's  arrest,  or  on  the  night  of  the  26th,  when  he  does  not  even- 
attempt  to  prove  any  such  thing  in  the  subsequent  investigations.  Cromwell's 
name  is  nowhere  connected  with  any  attempt  to  communicate  with  Mr.  Spencer, 
after  the  latter's  arrest. 

Then,  the  manner  in  which  Captain  Mackenzie  reasons,  in  this  connexion,  is 
worthy  of  remark.  "  Small,  thus  pointed  out  BY  AN  ASSOCIATE  to  increased  sus- 
picions," &c.  Here  Cromwell's  guilt  is  assumed,  as  an  additional  reason  for 
arresting  Small  ! 

On  the  same  page  (199),  the  reader  will  find  Captain  Mackenzie's  extraordinary 
reasoning  on  the  subject  of  M'Kinley's  having  got  Waltham  flogged  on  the  29th, 
to  which  we  have  alluded  in  connexion  with  the  testimony  of  Mr.  M,  Perry.  Wai- 


320  REVIEW  OF  THE  PROCEEDINGS 

tbam,  a  prisoner  for  an  ordinary  offence,  had  told  M'Kinley  where  three  bottles 
of  wine  could  be  found;  "his  object  being,  no  doubt,"  says  Captain  Mackenzie, 
"  to  furnish  the  means  of  excitement  to  the  conspirators,  to  induce  them  to  rise, 
release  Waltham,  and  get  possession  of  the  vessel.  M'Kinley  was  down  on  the 
programme  as  certain,  and  as  stationed  at  the  arm-chest.  He  reported  Waltham 
to  the  first  lieutenant,  an  extraordinary  denunciation  under  the  circumstances,  proba- 
bly occasioned  by  his  desire  to  relieve  himself  from  suspicion."  Waltham  was 
flogged  for  this  new  breach  of  discipline,  and  we  confess,  under  all  the  peculiar- 
ities of  this  very  peculiar  sort  of  reasoning,  we  are  surprised  M'Kinley  escaped 
the  same  punishment.  This  is  one  of  the  instances  in  which  a  conspirator  flies 
from  the  extremes  of  sullenness.  missing  of  musters,  &c.,  to  such  a  masterpiece 
of  duplicity,  as  to  get  a  confederate  flogged. 

Three  bottles  of  idine  would  make  but  little  impression,  we  fancy,  on  twenty 
sailors — Captain  Mackenzie's  minimum  of  the  conspiracy,  in  the  first  place.  Then, 
a  sufficient  reason  may  be  found  in  Waltham's  wish  to  get  a  drink.  The  wine 
was  out  of  his  reach,  and  M'Kinley  might  have  sufficient  good-fellowship  to  re- 
member the  man  who  had  given  him  the  information.  But  the  fact  is  not  as  sta- 
ted. M'Kinley  swears  (p.  178),  that  lie  told  the  wardroom-boy,  Robbins,  of  Wal- 
tham's proposal ;  and,  as  Mr.  Gansevoort  confirms  this  account,  we  presume  his 
statement  is  true.  This  just  relieves  M'Kinley  from  the  extravagant  supposition 
of  Captain  Mackenzie,  while  it  removes  any  notion  of  a  wish  to  conceal  the  delin- 
quency of  a  fellow.  In  a  word,  the  whole  transaction,  as  it  occurred,  was  of  the 
most  natural  sort,  and  clears  M'Kinley  from  all  just  distrust,  as  much  as  such  a 
transaction  can.  There  was  not  the  concealment  natural  to  a  conspirator — there 
was  not  the  officiousness  of  an  assumed  honesty.  It  was  simply  one  wardroom- 
boy  telling  another  of  the  tricks  of  a  third.  In  addition,  Captain  Mackenzie  sees 
the  very  finesse  of  villany  in  M'Kinley's  course,  because  his  name  was  down  on 
the  list  of  certain,  instead  of  entertaining  any  doubts  of  the  accuracy  of  the  list,  on 
account  of  the  natural  behavior  of  the  suspected  man.  As  for  Waltham,  he  was 
the  last  down  of  the  nolens  volens  men,  showing  conclusively,  if  the  Greek  paper 
shows  anything,  he  was  one  of  those  who  presented  himself  last  to  Mr.  Spencer's 
mind,  as  being  desirable  to  retain  even  against  his  own  will. 

At  p.  200,  Captain  Mackenzie  says  :  "  During  the  night,  seditious  ivords  were 
heard  through  the  vessel,"  &c.,  &c.  If  so,  why  have  not  these  words  been  proved, 
and  why  have  not  the  offenders  been  punished  ?  At  p.  200,  is  this  :  "  Mr.  Wales 
detected  Charles  A.  Wilson  attempting  to  draw  out  a  handspike  from  under  the 
launch,  with  an  evident  purpose  of  felling  him,"  &c.,  &c.  If  so,  it  is  to  be  re- 
gretted that  Mr.  Wales  did  not  shoot  the  fellow  on  the  spot.  But,  how  stand  the 
facts?  In  the  first  place,  in  his  evidence  before  the  council,  Wales  does  not 
allude  to  the  subject  at  all.  Under  a  cross-examination  (p.  25),  he  admits  that  he 
was  standing  about  midway  the  trunk,  on  the  quarter-deck,  while  Wilson  was-  at 
the  stern  of  the  launch,  forward  of  the  mainmast,  a  distance  from  him  of  nearly  or 
quite  thirty  feet !  The  motive,  consequently,  was  pure  conjecture,  and  such,  in 
fact,  Wales  admits  it  to  be.  That  it  was  conjecture  on  insufficient  grounds,  is 
probable  from  the  circumstance  that  no  corroborating  fact  is  shown;  no  other  evi- 
dence of  an  intention  to  rise  at  that  particular  instant  is  seen ;  that  Wilson  might 
have  been  shot  by  either  of  the  armed  officers,  one  forward,  one  aft;  that  he  could 
hardly  hope  to  have  walked  aft  these  thirty  feet,  carrying  the  handspike,  and  es- 
cape detection;  and  that  he  was  seen,  even  before  he  got  it  out  of  the  launch.  As 
for  the  lame  excuse  of  Wilson,  why  is  it  not  given,  that  we  may  judge  of  it?  An 


OF  THE  NAVAL  COURT  MARTIAL.  321 

innocent  man,  who  is  met  with  a  cocked  pistol,  and  a  threat  of  having  his  brains 
blown  out,  for  handling  a  handspike  on  board  ship,  may  be  excused  for  a  little 
incoherency.  When  there  is  so  much  incoherency,  and  so  many  mistakes  made, 
after  the  events,  with  every  motive  for  precision  and  accuracy,  it  is  fair  to  suspect 
some  confusion  in  the  orders  given  at  the  time. 

On  the  same  page  (200),  Captain  Mackenzie  alludes  to  the  missing  of  their 
musters,  by  two  or  three  of  the  men,  in  the  following  words,  and  as  a  strong  evi- 
dence of  an  intention  to  rise  :  "  That  they  should  have  been  asleep  at  all,  that 
night,  was  not  likely"  he  says.  Here  he  assumes  guilt  to  prove  guilt !  <;  That 
they  should  have  missed  their  muster  on  that  particular  occasion,  having  never 
done  so  before,  otherwise  than  intentionally,  was  impossible"  This  is  valuable, 
as  giving  us  an  insight  into  Captain  Mackenzie's  views  of  the  possibilities.  All 
this  obtains  its  true  character  when  we  read  the  explanation  of  M'Kinley  (p.  177), 
one  of  those  implicated.  This  young  man  says  he  and  M'Kee  turned  in  and  out 
together,  and  that  they  relied  on  each  other  for  calls;  that  M'Kee  did  not  call  him 
that  morning,  in  consequence  of  being  obliged  by  the  officers  to  lie  down  on  deck, 
where  he  fell  asleep.  This  is  certainly  not  only  possible,  but  it  is  highly  probable, 
as  the  precise  moments  of  changing  'the  watches  were  those  most  apprehended, 
and  the  officers  may  very  well  have  thought  it  best  to  keep  one  watch  close  until 
the  other  was  up.  But,  Captain  Mackenzie's  reasoning  on  the  subject  is  the  most 
extraordinary  of  all.  "  There  was  probably  an  agreement  to  meet,  around  the 
officer  of  the  deck,  and  commit  some  violence,"  he  says.  These  men  who  con- 
templated violence,  would  first  draw  suspicion  and  punishment  down  on  them- 
selves, in  order  to  accomplish  their  ends.  After  the  revelations  these  men,  if  con- 
cerned in  the  plot  as  described,  must  have  suspected  to  be  made,  did  they  sup- 
pose any  officer  in  his  senses  would  call  up  half-a-dozen  delinquents  at  a  time, 
expressly  to  give  them  this  advantage  over  him  ?  As  nothing  of  the  sort  was  at- 
tempted, it  is  reasonable  to  suppose  nothing  was  meditated.  As  for  the  general 
impossibility  of  men's  missing  their  muster  at  that  time,  we  think  the  fact  of  pis- 
tols being  pointed  at  the  men,  in  one  instance  fired,  the  arrests,  the  ordering  and 
counterordering,  and  all  the  disorganization  attendant  on  such  a  course,  were  just 
the  measures  to  produce  uncertainty,  indecision,  and  the  very  evils  of  which  there 
was  complaint.  Others  missed  their  musters,  who  were  not  suspected! 

At  p.  201,  the  reader  will  see  Captain  Mackenzie  considered  his  own  letter  to 
the  officers,  as  referring  to  them  the  question  of  life  and  death  of  "  three  of  their  fel- 
low-creatures." This  is  conclusive  as  to  the  expectation  with  which  that  refer- 
ence was  made. 

On  the  same  page,  Captain  Mackenzie  adds:  "Wilson  having  failed  in  his 
attempt  to  get  up  an  outbreak  in  the  night,"  &c.,  &c.  Here  Wilson's  guilt  is  qui- 
etly assumed,  and  yet  we  are  astounded  with  the  fact  that  no  attempt  has  been 
made  to  punish  the  man. .  No  evidence  of  any  such  attempt  is  given,  unless 
Wales's  improbable  story  of  the  handspike  be  taken  as  such,  and  that  occurred  in 
the  morning.  On  the  same  page,  speaking  of  Wilson's  knife  or  dagger,  he  says 
it  was  "  short,  and  gradually  spreading  in  breadth  ;  sharp  on  both  sides  ;  it  was 
of  no  use  for  any  honest  purpose  ;  it  was  only  fit  to  kill,"  &c.,  &c.  Mr.  Heiskell,  the 
purser,  admits  he  purchased  this  dagger  for  M'Kinley,  p.  160,  who  confirms  the 
fact,  p.  176.  It  is  to  be  presumed,  this  gentleman  fancied  it  might  be  differently 
employed.  Captain  Mackenzie  says,  p.  198,  Mr.  Spencer's  eyes  cast  "  strange 
and  stealthy  glances"  to  the  mast-head,  when  the  royal-mast  was  carried  away. 
Mr.  Hays,  p.  213,  on  the  same  subject :  "  His  eyes  were  constantly  fixed  aloft" 

41 


322  REVIEW   OF  THE  PROCEEDINGS 

Speaking  of  M'Kinley,  p.  201,  Captain  Mackenzie  says:  "He  is,  in  fact r 
the  individual  who,  if  the  mutiny  had  been  successful,  would  have  made  way 
with  all  his  competitors,  and  risen  to  command."  This  man  is  now  at  large, 
after  having  remained  weeks  in  irons  by  Captain  Mackenzie's  orders! 

At  p.  202,  he  says:  "Those  who  (though  KNOWN  to  be  very  guilty)  were 
considered  to  be  the  least  dangerous,  were  called  out  and  interrogated,"  &c.,  &c. 
Now,  this  statement  is  true  or  untrue.  If  true,  why  has  not  Captain  Mackenzie 
done  his  duty,  and  preferred  charges  against  wretches  KNOWN  TO  BE  VERY 
GUILTY  ;  if  untrue,  what  is  the  value  of  his  report  ? 

It  strikes  us  Captain  Mackenzie  is  not  quite  as  ingenuous  as  he  lays  claim  to> 
be,  when  he  says,  p.  202,  after  receiving  the  report  of  the  officers  recommending 
the  execution :  "I  at  once  CONCURRED  in  the  justice  of  this  opinion."  Any  one,  who 
looks  at  his  own  statement,  p.  201,  where  he  speaks  of  his  unwillingness  to  let  the 
younger  officers  give  opinions  affecting  the  lives  of  "three  fellow-creatures;"  his- 
letter,  in  which  he  docs  not  speak  at  all  of  the  necessity  of  hanging  the  prisoners, 
and  the  answer  of  the  officers,  must  be  satisfied  there  is  a  sous  entendu  about  this 
affair,  which  renders  the  profession  of  this  gentleman's  prompt  "  concurrence"  a 
little  supererogatory. 

But  his  report  settles  this  point.  In  it,  he  says  distinctly,  that  he  made  out  the 
station-bill  for  the  execution,  the  night  previously  to  the  day  on  ivhich  he  received  the 
opinion  of  the  officers — p.  203.  Then  he  speaks,  p.  202,  of  two  other  prisoners,. 
to  whose  cases  "the  attention  of  the  officers  had  been  invited."  By  whom? 
Not  in  his  published  letter,  which  was  written  by  his  own  admission,  before  any 
more  arrests  had  been  made.  This  proves  there  were  communications  with  the 
council  that  were  not  of  record. 

Perhaps  the  most  extraordinary  part  of  this  very  extraordinary  report  is  Capt. 
Mackenzie's  account  of  his  proceedings,  after  Mr.  Spencer  had  solemnly  asserted 
Cromwell's  innocence,  himself  so  near  death.  It  is  at  pp.  203,  204.  He  told 
Mr.  Gansevoort  to  consult  the  petty  officers.  Now  he  had  the  depositions  of 
these  petty  officers  in  his  possession,  and  we  find  it  difficult  to  believe  that  any 
man  of  sense  can  attach  the  least  importance  to  them  as  evidence,  those  of  Wales 
and  Tyson  excepted.  Captain  Mackenzie  then  returns  to  Mr.  Spencer,  and  in- 
stead of  questioning  him  about  Cromwell,  instead  of  asking  an  explanation  of 
their  intimacy,  of  anything,  indeed,  that  had  been  alleged  against  the  boatswain's 
mate,  he  tries  to  stir  up  the  devil  within  him,  by  drawing  a  picture  of  what  Crom- 
well would  have  done  with  him,  excited  a  curiosity  in  this  unhappy  youth  to  know 
what  the  crew  had  said  about  him,  and  repeated  the  opinion  of  one  of  the  petty 
officers  about  the  fool  and  the  knave  on  the  two  arm-chests.  The  termination  of 
this  scene,  is  thus  given  by  Captain  Mackenzie  himself:  "  This  effectually 
aroused  him  ;  his  countenance  assumed  a  demoniacal  expression;  HE  SAID  NO- 
MORE  ABOUT  THE  INNOCENCE  OF  CROMWELL."  Then  follows  some  of  Capt. 
Mackenzie's  logical  inductions.  Here  are  his  words: — 

"  He  might,  perhaps,  have  wished  to  save  him  in  fulfilment  of  some  mutual 
oath.  He  more  probably  hoped  he  might  yet  get  possession  of  the  vessel  and 
carry  out  the  scheme  of  murder  and  outrage  matured  between  them."  This,  be 
it  remembered,  is  said  of  a  man  ironed,  hand  and  feet.  "It  was  on  Cromwell 
that  he  had  APPARENTLY  TRUSTED  in  FULFILMENT  OF  SOME  AGREEMEN' 
FOR  A  RESCUE,  and  eloquently  pleaded  to  Lieutenant  Gansevoort,  when  Crom- 
well was  ironed,  for  his  release,  as  altogether  ignorant  of  his  designs  and  inno- 
cent." Now,  had  this  been  true,  of  what  use  could  such  an  agreement  be  with 


OF  THE  NAVAL  COURT  MARTIAL.  32J 

a  man  in  Cromwell's  situation?  The  reasoning  speaks  for  itself.  As  for  the 
accuracy  of  the  statement  about  the  eloquent  pleading,  it  is  certainly  not  sustained 
by  Mr.  Gansevoort's  testimony,  which  has  nothing  of  the  superlative  about  it. 
Although  he  had  seen  his  commander's  statement,  here  are  his  words  on  the  sub- 
ject (p.  32):  "That  evening  Cromwell  and  Small  were  confined.  Mr.  Spen- 
cer sent  for  me  and  asked  if  Cromwell  was  confined  about  any  connexion  that  he 
might  have  with  him.  I  told  him  he  was.  He  said  he  was  innocent ;  he  did 
not  think  Cromwell  would  join  him,  unless  there  was  money  on  board,  or  words 
to  that  effect.  It  was  my  impression  that  he  was  very  anxious  to  have  him  re- 
leased." Now,  certainly,  Mr.  Gansevoort  is  nowhere  an  unwilling  witness,  and 
is  it  probable,  had  Mr.  Spencer  said  more  than  has  been  here  stated,  that  it  would 
have  been  suppressed?  The  opinion  thrown  in  at  the  close  of  his  evidence  must 
pass  for  what  it  is,  the  opinion  of  a  man,  who,  by  his  own  showing,  was  looking 
out  to  discover  the  guilt  of  the  parties  whom  it  was  intended  to  execute. 

The  exaggeration  of  feeling  and  morality  that  prevailed  in  the  brig,  is  apparent 
throughout  the  report  and  the  evidence,  we  think,  and  it  may  have  the  effect  of 
mystifying  certain  persons  who  are  unacquainted  with  ships  and  sailors.  Of  this 
character,  is  the  story  told  by  Collins  to  the  boys,  at  Captain  Mackenzie's  insti- 
gation, after  the  execution,  concerning  the  money  in  the  India-man,  p.  207. 
This  man  Collins  had  told  a  story  of  having  been  in  a  ship,  in  which  there  was 
a  box  of  doubloons,  and  of  his  not  letting  the  fact  be  known  until  the  vessel  got 
in.  Upon  this  Cromwell  laughed,  and  said  "had  the  case  been  his  he  would 
have  run  away  with  the  box."  The  puerility  of  all  this  might  excite  a  smile,  did 
it  not,  like  so  many  other  points  in  this  melancholy  affair,  suggest  the  thought 
how  pitiable  it  was  that  no  better  justification  offered  for  hanging  a  man,  or  no 
better  moral  presented  to  enforce,  through  the  example  of  his  execution,  than 
what  was  to  be  gained  by  such  a  story  as  this.  We  are  of  opinion  had  Collins 
told  his  story  of  the  doubloons  to  one  hundred  sailors,  quite  fifty  would  have 
made  some  such  idle  remark  as  this  attributed  to  Cromwell.  On  shore,  even,  it 
would  have  been  made  by  thousands  who  would  not  dream  of  performing  what 
they  said. 

We  have  limits  for  only  one  more  of  Captain  Mackenzie's  decided  assumptions. 
Speaking  of  Cromwell,  p.  208,  he  says  :  "  HE  ONLY  could  answer  to  the  de- 
scription of  the  individual  alluded  to  by  Mr.  Spencer,  as  having  been  already  in 
tke  business  !"  Those  who  have  not  had  as  much  occasion  to  analyze  the  accu- 
racy of  Captain  Mackenzie's  references  and  quotations  as  have  fallen  to  our 
share,  may  be  surprised  at  the  boldness  of  this  statement,  when  they  come  to  look 
into  the  fact.  Mr.  Spencer  made  his  revelation  on  this  point  to  Wales,  whose 
statement,  of  course,  is  all  Captain  Mackenzie's  authority  for  what  he  says. 
Wales  says  :  "  The  brig  was  to  proceed  to  Cape  St.  Antonio,  or  the  Isle  of  Pines, 
one  of  these  places,  and  THERE  TAKE  ON  BOARD,  one  who  ?m.s-  familiar  with 
their  INTENDED  BUSINESS,"  &c.,  £c. — p.  15-5.  Now  Cromwell  COULD  NOT 
BE  the  man,  for  he  could  not  BY  POSSIBILITY,  "  answer  to  the  description."  And 
yet  Captain  Mackenzie,  with  Wales'* s  deposition  on  the  subject  at  his  command,  DOES 
NOT  HESITATE  TO  ASSERT  THE  CONTRARY,  in  order  to  make  out  his  case. 

We  could  greatly  extend  this  analysis  of  Captain  Mackenzie's  report,  but 
enough  has  been  said  to  put  the  reader  strictly  on  his  guard. 

We  conceive  that  the  world  will  never  know  the  literal  merits  of  this  extraor- 
dinary transaction.  The  testimony  comes  to  us  through  such  channels  as  to 
cause  a  doubt  of  its  accuracy,  if  not  of  its  motive ;  and  there  is,  and  probably 


324  REVIEW  OF  THE   PROCEEDINGS 

ever  will  be,  something  of  mystery  connected  with  many  of  its  details.  That  the 
officers  of  the  brig  viewed  one  side  of  the  case  too  intently,  to  give  due  weight 
to  the  other,  we  fancy  few  dispassionate  men  will  now  deny.  This  may  have 
been  natural  to  the  inexperience  and  moral  dependency  of  most  of  them,  and  in- 
somuch excusable  ;  but  taking  their  commander's  own  mode  of  regarding  the 
facts,  as  it  is  exhibited  in  his  own  report,  he  will  probably  be  judged,  hereafter, 
by  a  severer  standard.  We  can  not  but  think  he  has  not  made  out  a  justification 
of  the  necessity,  and  that  he  has  signally  failed  in  establishing  the  guilt  of  Crom- 
well. We  are  far  from  being  satisfied  with  the  remainder  of  the  case,  but  our 
reasoning  has  been  based  on  the  supposition  that,  not  only  is  Wales's  statement 
true,  but  that  Mr.  Spencer  actually  intended  all  that  is  imputed  to  him. 

Our  theory  on  the  subject  of  the  state  of  the  crew,  is  very  simple.  We  believe 
that  the  people  got  together  in  knots,  as  described,  to  converse  about  the  sight 
of  Mr.  Spencer  in  irons,  on  the  quarter-deck.  Then  succeeded  the  revelations 
and  rumors,  conjectures,  criticisms,  and  some  surliness,  perhaps,  as  a  consequence. 
It  is  not  to  be  supposed  that  the  quarter-deck  and  petty  officers  monopolized  all 
the  gossiping.  The  pistol,  with  menaces,  followed,  and  a  species  of  disorgani- 
zation of  the  crew  came  next.  We  do  not  think  the  last  amounted  to  much,  or 
was  very  widely  spread,  and,  as  applied  to  the  majority,  it  may  have  been  more 
owing  to  uncertainty  than  even  to  discontent.  Mr.  Gansevoort  admits,  p.  37,  he 
told  the  crew  they  might  get  their  "  brains  blown  out  before  they  were  aware  of 
it." 

In  this  state  of  things,  Captain  Mackenzie  conceived  the  idea  of  executing  his 
three  prisoners.  It  was  talked  about,  and  several  of  the  older  officers  agreed  it 
would  be  necessary,  if  more  prisoners  were  made. — See  record,  p.  49.  On  the  mor- 
ning of  the  day  when  the  council  convened,  AND  AFTER  THE  LETTER  CONVENING 

IT    WAS    WRITTEN,    FOUR    MORE    PRISONERS    WERE    MADE.        TllCSC   Were    SOme 

of  the  men  who  have  since  been  suffered  to  go  unprosecuted.  The  council  was 
evidently  apprized  of  the  necessity,  and  of  the  mode  contemplated  to  meet  it,  and, 
in  this  frame  of  mind,  it  proceeded  to  make  its  inquiries,  without  giving  the  ac- 
cused a  hearing.  Pending  the  sitting,  Mr.  Gansevoort  had  one,  or  more  inter- 
views with  Mr.  Spencer,  with  the  avowed  object  of  getting  further  evidence, 
through  the  young  man's  unsuspecting  conversation,  OF  HIS  GUILT.  This  is  a 
startling  fact,  but  it  rests  on  Mr.  Gansevoort's  own  testimony,  p.  45.  The 
want  of  art  that  is  manifested  in  letting  such  a  circumstance  be  known,  may  am- 
ply prove  sincerity  of  purpose  ;  but  what  man  who  confessedly  commenced  an 
inquiry  with  such  an  object,  ever  failed  of  seeing  something  to  corroborate  his 
previous  opinions  ?  Something  of  the  same  sort  is  stated,  p.  47,  in  order  to  get 
admissions  from  Small  that  might  implicate  Cromwell.  In  a  word,  want  of  head 
has  been  the  predominating  weakness,  according  to  our  views,  throughout  an 
affair  that  is  destined  to  make  a  dark  page  in  the  history  of  the  country,  and 
which  leaves  a  blot  on  its  system  of  jurisprudence. 

As  for  the  proceedings  of  the  council,  were  it  not  for  the  fearful  consequences, 
they  could  meet  with  nothing  but  pity  and  contempt,  from  every  legal  mind  on 
earth.  Take  away  Wales's  statement,  and  that  would  oblige  the  officers  to  regard 
the  Greek  paper  as  the  measure  of  the  danger,  there  is  scarcely  anything  to  sus- 
tain them  but  the  lowest  gossip,  and  opinions  founded  on  such  gossip.  Tyson's 
deposition  may  perhaps  be  entitled  to  some  little  attention.  The  value  of  many 
of  these  gossiping  opinions  were  known,  too,  as  is  seen,  for  instance,  in  the  state- 
ments of  Mr.  Gansevoort  before  the  Court  of  Inquiry,  where  some  of  the  petty 


OF  THE  NAVAL  COURT  MARTIAL.  335 

officers  speak  of  knives  and  other  things  which  they  suspected  to  be  stowed 
away,  and  which  an  examination  showed  were  not  so  stowed  away.  Then  there 
is  the  statement  of  King,  who  swears  confidently  to  a  very  particular  order  con- 
cerning the  main-royal-brace,  when  everybody  else,  including  the  officer  who  <rave 
the  order,  gives  a  very  different  account  of  the  matter.  This  is  the  most  impor- 
tant of  the  witnesses  among  the  petty  officers.  Another  of  these  witnesses  says: 
— "I  don't  think  the  vessel  is  safe  with  these  prisoners  on  board  ;  this  is  my  de- 
liberate opinion,  FROM  WHAT  I'VE  HEARD  KING,  THE  GUNNER'S  MATE  SAY  , 
that  is,  that  he  had  HEARD  the  boy*  say  there  were  spies  about."  Take  Dickin- 
son's answer,  pp.  148,  149,  concerning  the  construction  he  put  on  Cromwell's 
threats,  until  after  the  arrest,  when  he  admits  he  viewed  them  differently,  as  a 
specimen  how  men  of  this  stamp  regard  facts. 

The  looks  and  signs  were  quite  natural,  as  the  circumstances  are  related, 
though  probably  like  everything  else  they,  too,  have  been  seen  through  a  distort- 
ed medium.  Mr.  Spencer  was  liked  among  the  crew  ;  an  officer  who  pursued 
his  course  could  not  fail  to  be,  for  a  time  at  least,  and  that  those  who  pitied  him, 
felt  for  him,  fancied  him  ill-treated  perhaps,  should  look  at  him  and  manifest  sym- 
.  pathy,  is  quite  in  the  nature  of  things. 

Nor  do  we  conceive  it  at  all  necessary,  admitting  Mr.  Spencer  seriously  intended 
all  that  Wales  has  alleged,  to  suppose  any  material  portion  of  the  crew  concerned 
in  the  affair.  It  is  admitted  by  Captain  Mackenzie's  witnesses,  his  own  nephew 
among  others,  that  names  are  down  as  doubtful,  while  they  think  the  parties,  in 
one  instance  quite,  in  another  substantially,  innocent.  It  would  be  a  just  inference 
to  believe  that  feelers  were  thrown  out,  and  that  the  approaches  at  first  would  be 
gradually  made.  It  is  asking  too  much  to  wish  us  to  think  the  knowledge  of  the 
mutiny  could  have  been  much  extended,  with  the  certainty,  after  an  examina- 
tion under  oath,  of  every  soul  in  the  brig,  ten  then  in  prison  excepted,  that  no 
one  could  let  the  fact  be  known.  All  experience  shows  that  state's  evidence  is 
seldom  wanting,  in  an  affair  in  which  many  are  implicated.  One  fact,  too,  in  re- 
lation to  the  testimony  of  Wales,  must  be  kept  constantly  in  mind.  By  his  own 
statement,  Mr.  Spencer  commenced  his  revelations  by  inquiring  if  he  (Wales) 
would  be  afraid  to  kill  a  man — if  he  would  hesitate  about  taking  human  life,  say- 
ing he  did  not  doubt  his  courage,  and  consequently  applying  the  question  to  his 
principles.  Now,  after  such  a  beginning,  Wales  invokes  the  name  of  God  to  pro- 
test he  would  keep  the  secret  that  was  to  follow. 

A  portion  of  the  accompanying  record  is  given  to  an  investigation  of  the  fact 
whether  Mr.  Spencer  dictated  a  letter  to  his  friends,  which  letter,  if  ever  dictated, 
it  is  understood  has  never  been  received.  Mr.  O.  H.  Perry,  the  young  gentle- 
man who  carried  the  official  account  to  Washington,  is  stated  to  have  said,  while 
at  the  seat  of  government,  that  such  a  letter  was  written.  Captain  Mackenzie  offered 
his  own  affidavit  to  show  that  no  such  letter  was  written,  and  the  court  admitted 
this  affidavit  to  record,  though  not  as  proof.  It  will  be  found  at  p.  195,  together 
with  a  copy  of  the  notes  taken  by  Captain  Mackenzie,  according  to  his  statement, 
and  which  notes,  he  would  give  us  to  infer,  had  been  mistaken  for  a  letter. 

We  shall  not  affirm  that  Captain  Mackenzie  did  write  any  letter  of  the  sort 
supposed,  though  several  of  the  witnesses  appear  to  have  imbibed  this  notion. 
We  shall  give  some  of  the  most  prominent  points  connected  with  this  branch  of 
the  subject,  and  leave  the  reader  to  draw  his  own  inferences. 

At  p.  202  of  record,  will  be  found  the  commencement  of  Captain  Mackenzie's 
report  of  what  passed,  in  private,  between  himself  and  Mr.  Spencer,  after  the  for- 


326  REVIEW  OF  THE  PROCEEDINGS 

mer's  announcement  of  the  latter's  approaching  execution.  It  terminates  at  p. 
205.  Now  this  report  contains  no  statement  that  Mr.  Spencer  DICTATED  any- 
thing to  Captain  Mackenzie,  which  was  to  be  written  as  the  dying  declarations  of 
the  young  man.  It  contains  no  other  than  this  incidental  admission  that  anything, 
indeed,  was  then  written  by  Captain  Mackenzie,  without  a  word  explaining  why 
and  for  what  purpose  it  had  been  written,  viz. :  *  He  [Mr.  Spencer]  read  over 
what  had  been  written  down :  I  had  stated  hurriedly  in  the  third  person,  '  He 
excused  himself  by  saying  that  he  had  entertained  the  same  ideas  in  the  John 
Adams  and  Potomac.'  He  asked  that  that  might  be  corrected:  'I  did  not 
offer  it  as  an  excuse,  I  only  stated  it  as  a  fact !'  More  than  an  hour  had  now 
elapsed  during  the  continuance  of  this  scene"  fyc.,  p.  205.  At  page  172,  the  reader 
will  find  a  remarkable  portion  of  the  record.  The  judge  advocate  had  been  ex- 
amining Mr.  O.  H.  Perry  on  the  subject  of  the  letter  supposed  to  have  been  written 
by  Mr.  Spencer  to  his  friends,  by  means  of  a  dictation  to  Captain  Mackenzie.  It 
is  important  to  remember  this  fact;  as  it  gives  more  weight  to  Captain  Mackenzie's 
subsequent  admissions.  In  the  record  of  the  dialogue  that  passed  in  consequence 
of  Captain  Mackenzie's  interrupting  the  judge  advocate,  it  will  be  seen  that  Cap- 
tain Mackenzie  was  distinctly  asked  if  Mr.  Spencer  "did  dictate  to  you  [him, m 
Captain  Mackenzie]  what  to  write?"  "Yes,  he  did,"  Captain  Mackenzie  an- 
swered, "  the  substance  of  it  is  in  my  report — my  official  report"  This  admission 
was  subsequently  made  in  a  formal  manner,  and  embodied  in  the  record.  It  must 
consequently  be  taken  as  proved.  Usually  a  "  dictation"  of  the  thoughts  and 
messages  of  an  individual  take  the  form  of  the  first  person  singular.  It  is  very 
remarkable  if  these  "  dictations"  of  Mr.  Spencer  did  not,  as  a  whole,  follow  this 
general  rule,  that  Captain  Mackenzie  should  have  said,  as  he  does  in  the  forego- 
ing quotation,  from  p.  205,  "  I  had  stated  hurriedly  IN  THE  THIRD  PERSON,"  &c., 
&c.  The  words  "  IN  THE  THIRD  PERSON"  are  perfect  surplusage,  useless  and 
without  meaning,  unless  the  remainder  of  the  document,  letter,  or  memorandum, 
were  in  ihejirst  person.  It  is  not  easy  to  see  why  Captain  Mackenzie  should  have 
used  them  at  all,  unless  on  this  account.  Now  the  memorandum  which  Captain 
Mackenzie  swears,  p.  192,  was  all  he  wrote  on  the  occasion  meant,  is  written  princi- 
pally in  the  third  person,  so  far  as  Mr.  Spencer  is  concerned.  But  one  expression, 
indeed,  in  that  part  of  it  which  Captain  Mackenzie  swears  was  written  before  the 
execution,  is  in  the  first  person,  and  that  is  the  very  last  sentence.  It  is  in  these 
words :  "  I  am  afraid  this  will  injure  my  father." 

Again  :  Any  one  can  compare  the  report  with  the  memorandum.  The  part 
of  the  former  that  tallies  with  the  commencement  of  the  memorandum,  will  be 
found  at  the  bottom  of  the  first  column,  p.  204.  The  first  discrepancy  is  impor- 
tant. In  the  report  Captain  Mackenzie  makes  this  young  man  say :  "  I  deserve 
death  for  this  and  many  other  crimes.  There  are  few  crimes  that  I  have  not 
committed."  The  memorandum  says,  "  deserved  death  for  this,  and  other  sins" 
We  presume  Captain  Mackenzie  need  not  be  told  that  crime  is  not  necessarily 
sin.  This  looseness  awakens  distrust.  The  distinction  is  very  important,  con- 
sidering the  words  as  a  confession,  under  all  the  circumstances  of  this  extraordinary 
ease. 

But  the  point  to  which  we  attach  the  most  importance  is  the  meagerness  of 
the  memorandum,  as  compared  with  the  time  admitted  by  Captain  Mackenzie 
to  have  passed  in  this  private  interview,  and  the  time  sworn  by  several  wit- 
nesses, seemingly  to  have  been  consumed  in  making  them.  According  to  the 
report  itself,  an  hour  must  have  passed,  most  of  which  time_Captain  Mackenzie 


OF  THE  NAVAL  COURT  MARTIAL.  327 

was  occupied  in  private  with  Mr.  Spencer.  The  witnesses  agree  in  thinking  the 
period  during  which  they  thought  the  former  busied  in  writing  to  Mr.  Spencer's 
dictation  about  half  an  hour.  The  part  of  the  memorandum  which  Captain 
Mackenzie  swears  was  written  previously  to  the  executions,  is  very  brief.  The 
question  then  arises,  how  was  the  rehiaining  time  occupied?  Captain  Mackenzie 
accounts  for  a  small  portion  of  it,  by  what  he  has  related  in  his  report,  and  there 
still  remains,  to  say  the  least,  we  should  think,  quite  half  an  hour,  or  more,  of 
private  dialogue  concerning  which  we  have  no  explanation.  If  Mr.  Spencer  re- 
ally "  dictated,"  where  is  the  matter  dictated? — or,  if  he  merely  conversed,  what 
did  he  say?  Captain  Mackenzie's  whole  report,  and  it  contains  his  own  remarks 
as  well  as  Mr.  Spencer's,  could  all  have  been  uttered  in  a  very  few  minutes,  and 
the  memorandum,  so  far  as  relates  to  this  interview,  is  still  more  meager.  We 
have  great  difficulty  in  believing  that  any  material  portion  of  that  which  passed,  as 
to  quantity  at  least,  is  reported,  and  if  anything  is  suppressed,  what  is  it  ?  We  might 
add,  that  the  memorandum  as  given,  is  a  singular  document  to  have  been  dictated 
and  revised — Captain  Mackenzie  says  Mr.  Spencer  read  it — by  an  educated 
young  man,  as  his  dying  message  to  his  friends,  or  indeed  for  any  other  purpose. 
Mr.  Spencer  must  have  had  difficulty  in  even  understanding  it. 

Now  two  of  the  witnesses  swear  that  Captain  Mackenzie,  in  an  address  he  made 
to  the  crew,  said  that  Mr.  Spencer  had  been  telling  untruths  just  previously  to 
Iris  death.  M'Kee  says,  p.  215  :  "He  [Captain  Mackenzie]  read  Mr.  Spencer's 
letter  ;  he  said  he  was  satisfied  that  the  young  man  had  been  lying  to  him  for  half 
an  hour  before  his  death,"  &c.  Green  says,  p.  218  :  "  I  heard  the  commander 
say :  *  This  young  man  died  with  a  lie  in  his  mouth ;'  I  don't  know  that  he 
meant  Mr.  Spencer  more  than  any  one  else."  There  can  be  no  doubt,  if  the 
words  were  used,  Mr.  Spencer  was  meant.  If  lies  were  told,  where  are  they  ? 
What  were  they  ? 

It  will  probably  be  said  that  M'Kee  and  Green  were  two  of  Mr.  Spencer's 
conspirators,  and  are  not  to  be  believed.  We  apprehend  that  this  is  neither  law, 
nor  reason.  It  will  not  do  to  say  that  an  officer  can  bring  accusations  against  a 
portion  of  his  crew  that  are  never  followed  up  by  prosecutions,  and  affirm  that 
the  accused  are  to  be  discredited  in  consequence.  On  this  principle  a  commander 
could  never  be  convicted  of  any  crime,  since  he  had  only  to  put  the  witnesses  he 
feared  in  irons,  until  his  own  trial  was  over,  to  obtain  impunity.  On  paper,  the 
testimony  of  M'Kinley,  M'Kee,  and  Green,  appears  quite  as  probable,  to  say  the 
least,  as  that  of  the  witnesses  for  the  defence  ;  better,  we  think,  than  most,  and 
quite  as  credible  as  the  best.  Then  the  fact  is  one  not  likely  to  be  invented. 

But  setting  aside  this  obviously  just  claim  of  these  witnesses  to  stand  as  fairly 
before  the  community  as  others  of  their  class  and  intelligence,  let  us  see  if  their 
testimony  is  altogether  without  support.  Dr.  Leecock  was  asked,  p.  220  :  "  Did 
you  hear  any  statement  [from  Captain  Mackenzie],  that  Mr.  Spencer  had  been 
telling  the  commander  falsehoods  before  he  died  ?"  "  I  think  I  did  hear  some  such 
observation  as  that."  This  is  the  evidence  of  an  unwilling  witness,  we  think,  and 
in  its  substance,  it  corroborates  the  statements  of  M'Kee  and  Green.  Well, 
•where  are  these  falsehoods  ?  Not  in  this  report,  it  is  to  be  presumed — not  in  the 
memorandum.  If  omitted,  then  is  the  memorandum  a  defective  record,  and  as 
such  to  be  regarded  with  distrust.  It  may  be  true  it  contains  all  Captain  Mac- 
kenzie wrote;  but  the  question  is  if  it  contained  all  that  passed. 

One  of  the  parties  to  the  dialogue  is  dead,  and  the  other  has  the  whole  matter 
in  his  own  hands.  That  Captain  Mackenzie  is  not  infallible  as  authority  is  shown 


328  REVIEW  OF  THE  PROCEEDINGS 

by  the  looseness  of  his  statements,  about  the  secret  conversation  between  Mr. 
Spencer  and  Cromwell  on  the  night  of  the  26th,  that  of  "  crime"  for  "  sin,"  and 
other  similar  mistakes.  But,  giving  this  gentleman  the  fullest  benefit  of  his  own 
explanations,  we  will  reason  a  little  in  his  own  manner. 

Mr.  O.  H.  Perry  believed  what  he  said  at  Washington,  and  probably  would  then 
have  sworn  to  it ;  and  without  a  hearing  Captain  Mackenzie  would  have  stood  in 
the  awkward  dilemma  of  being  convicted  of  having  suppressed  a  letter  from  one 
of  the  persons  executed,  a  letter  written  by  himself,  and  through  his  own  agency  ! 
Cromwell  might  have  cleared  up  every  one  of  the  circumstances  that  made  against 
him,  in  the  minds  of  the  officers,  had  he  too  been  heard.  It  is  not  only  pos- 
sible, but  probable,  that  the  cases  of  the  other  two,  would,  to  say  the  least,  have 
been  colored  differently  from  what  they  now  are,  had  the  same  opportunity  been 
extended  to  them.  If  Mr.  O.  H.  Perry,  too,  were  mistaken  in  this  fact,  he  may 
be  mistaken  in  others,  and  there  being  no  reason  for  believing  in  any  intentional 
mistatement  as  connected  with  the  affair  of  the  letter,  on  the  part  of  this  young 
gentleman,  if  he  made  this  mistake,  others,  in  all  that  relates  to  their  opinions, 
the  signs,  symptoms,  and  other  omens,  may  have  made  other  mistakes. 

We  know  of  persons,  good  judges  of  evidence  too,  experienced  members  of 
the  bar,  who  doubt  of  there  having  been  any  serious  design  of  a  mutiny  on  the 
part  of  even  Mr.  Spencer.  They  think  the  whole  the  idle  mystification  of  a 
youth  practising  on  Wales,  and  possibly  on  Small,  and  the  accessories  to  have 
been  either  invented,  or  imagined  by  the  different  witnesses.  We  have  had  one 
of  these  theories,  and  that  from  a  perfectly  disinterested  quarter,  laid  before  us-, 
and  we  have  no  hesitation  in  saying,  that  it  is  far  more  plausible  than  most  of  the 
theory  of  the  mutiny  that  has  been  given  to  the  public  by  Captain  Mackenzie. 
It  assumes  that  Mr.  Spencer  was  mystifying  Wales,  and  that  his  Greek  paper 
was  prepared  for  the  purpose.  There  is  certainly  good  reason  for  believing  that 
these  papers,  or  one  of  them  at  least,  was  not  in  the  neck-handkerchief  at  the 
interview  on  the  booms,  as  Mr.  Tillotson  testifies  to  seeing  Mr.  Spencer  put  such 
a  paper  in  his  locker,  where  it  was  found  next  day.  This  occurred  just  about 
the  time  Wales  swears  he  and  Mr.  Spencer  got  upon  the  booms.  As  respects 
the  value  and  identity  of  these  papers,  this  fact  is  material,  since  it  shows  the  pa- 
per was  written  up  to  the  last  moment,  and  renders  it  almost  morally  certain  the  boys 
who  pretend  to  have  seen  the  paper  some  time  previously,  could  not  have  recog- 
nised its  face  at  least ;  and  as  for  papers  with  geometrical  figures  on  them,  on 
board  ship,  it  would  be  very  unsafe  to  assume  there  was  but  one  ! 

The  improbability  of  the  story  is  urged  against  its  truth.  As  Mr.  Spencer  was 
seen  with  a  tumbler  of  brandy  immediately  before  the  interview  on  the  booms, 
a  portion  of  which  Small  drank,  if  not  all,  it  has  been  thought  that  the  whole 
mystification  was  carried  on  under  the  influence  of  this  liquor.  We  con- 
fess, however,  that  the  reasoning  does  not  strike  us  as  satisfactory.  We  think 
the  Greek  paper  too  meager  for  mystification  ;  that,  in  such  a  case,  it  would  have 
been  made  more  terrific,  and  not  so  truthful.  Its  moderation  is  in  favor  of  its 
genuineness,  while  we  think  there  is  proof  that  its  owner  made  it  as  formidable  as 
he  could,  observing  any  respect  for  facts.  Wre  believe,  therefore,  a  plot  existed  in 
the  mind  of  this  young  man,  quite  likely  with  as  much  of  imagination  in  it,  as  of  real- 
ity, but  still  a  plot.  We  greatly  doubt  if  an  attempt  would  ever  have  been  made  to 
carry  it  into  execution.  The  very  fact  that  he  is  said  to  have  entertained  a  simi- 
lar plan  on  board  a  ship  like  the  Potomac,  throws  a  shade  of  distrust  over  the 
seriousness  of  the  design  ;  for  the  idea  of  converting  a  frigate  of  the  largest  class 

iv  ^ 
• 


OF  THE  NAVAL  COURT  MARTIAL.  329 

into  a  pirate,  in  the  present  state  of  the  world,  is  so  preposterous  as  almost  to  defy 
credulity.  It  is  true  the  same  argument,  though  differing  in  degree,  can  be  urged 
against  the  scheme  with  the  Somers,  for  we  do  not  remember  to  have  heard  of  a 
pirate,  at  large,  on  the  open  sea,  and  away  from  some  particular  coast,  since  the 
general  peace.  The  South  American  troubles  converted  a  few  quick  privateers 
into  rovers,  possibly.  A  cruising  pirate  is  a  thing  almost  unheard  of  in  these  later 
times,  and  it  is  certain  one  could  not  exist  a  twelvemonth  without  detection  and 
destruction.  The  piracies  of  which  we  occasionally  read  in  the  public  prints, 
are  merely  running  away  with  vessels  to  rob,  very  different  things  from  a  regular 
lawless  corsair.  This  is  one  of  the  affirmative  reasons  we  have  for  believing 
Cromwell  was  not  in  the  plot  at  all,  having  too  much  sense.  It  is  quite  likely  Mr. 
Spencer  sounded  him,  he  may  even  have  had  hopes  of  prevailing  in  the  end,  but 
it  is  not  easy  to  imagine  he  would  have  succeeded. 

We  incline  to  the  opinion  that  Mr.  Spencer  told  the  truth,  when  he  said  this 
scheming  on  such  projects,  was  a  mania  with  him;  a  morbid  state  of  feeling,  of 
which  he  found  it  difficult  to  get  rid.  It  really  seems  to  us  that  a  youth  making 
these  admissions,  expressing  penitence,  under  nineteen  years  of  age,  and  who  ad- 
mitted the  ties  of  family,  might  have  been  managed  for  four  or  five  days  without 
hanging  him ! 

Had  the  petty  officers  been  armed,  and  put  in  two  watches,  to  be  stationed  on 
the  quarter-deck  as  guards  over  the  prisoners,  and  a  body  to  act  in  meeting  an 
outbreak,  with  an  officer  at  their  head,  it  is  difficult  to  imagine  that  the  Somers 
could  not  have  reached  even  St.  Thomas. 

But,  the  most  inexplicable  part  of  the  conduct  of  Captain  Mackenzie,  is  the 
extraordinary  manner  in  which  he  kept  aloof  from  all  investigations  into  the  facts. 
A  few  words  at  the  different  arrests,  the  hour  passed  principally  with  Mr.  Spencer, 
and  the  annunciation  of  the  executions,  seem  to  have  been  the  extent  of  his  per- 
sonal inquiries.  Why  did  he  not  demand  the  particulars  of  a  plot  of  which  the 
existence  was  admitted?  Or  did  Mr.  Spencer  give  any  particulars,  and  were 
these  the  falsehoods  he  had  been  telling  ?  Even  Mr.  Gansevoort  seems  to  have 
limited  his  inquiries  of  Small,  to  obtaining  some  concession  that  might  implicate 
Cromwell.  No  close  and  general  investigation  took  place,  thongh  conversations 
often  occurred.  The  simple  question,  "Do  you  know  of  any  person  concerned 
in  this  affair  ?"  was  not  put  to  Small,  though  a  leading  question  was  asked  him, 
and  a  very  equivocal  answer  obtained,  with  the  avowed  intention  of  obtaining 
proof  against  Cromwell !  Then,  why  was  Cromwell  himself  not  questioned  ? 
The  proof — if  it  merit  such  a  name — on  which  this  man  was  hanged  was  just 
this  :  His  general  intimacy  with  Mr.  Spencer,  a  circumstance  that  might  have 
proceeded  from  the  desire  of  the  latter  to  sound  him,  without  any  guilt  in  the  for- 
mer, or  Mr.  Spencer  may  have  had  the  same  dread  of  Cromwell,  as  was  enter- 
tained aft ;  the  affair  of  the  mast,  a  violent  absurdity  in  its  inception,  and  which 
is  totally  broken  down  in  the  cross-examination,  and  which  never  was  anything 
but  a  most  improbable  conjecture  ;  the  $15  given  Cromwell ;  certain  language 
and  exhibitions  of  temper,  that  betray  anything  but  a  plot ;  and  the  opinions  of 
some  of  the  petty  officers  that  he  was  a  desperate  fellow  !  All  the  rest  of  the 
evidence,  such  as  it  is,  is  ex  post  facto.  When  it  is  remembered  that  the  execu- 
tions took  place  to  quiet  apprehension,  because,  as  Captain  Mackenzie  himself  ex- 
presses it,  p.  202,  "The  risks  and  uncertainty  of  the  preceding  night  had  deter- 
mined me  that  another  such  should  not  be  passed,"  it  is  unaccountable  that  no 
attempt  was  made  to  question  Cromwell.  He  had  not  kept  the  gift  of  the  money 

42 


330  REVIEW  OF  THE  PROCEEDINGS. 

a  secret ;  laid  little  restraint  on  his  temper  ;  acted  openly  enough,  or  the  witnesses 
are  foresworn,  and  yet  no  attempt,  not  even  the  smallest,  was  made  to  ask  expla- 
nations, not  a  solitary  question  appears  to  have  been  put  to  him  !  It  almost  seems 
that  there  was  a  fear  he  might  exculpate  himself. 

As  for  Small,  we  think  it  evident  he  was  of  more  feeble  mind  than  common. 
Liquor  may  have  done  this.  But,  weak  or  not,  it  was  hardly  necessary  to  hang 
a  man  who  felt  as  he  is  described  to  have  felt,  at  the  moment  of  execution.  We 
think,  even  then,  Captain  Mackenzie  might  have  felt  certain  that  he  was  in  com- 
mand of  his  brig,  and  stayed  his  hand. 

The  great  evils  that  are  to  result  from  the  Somers  affair,  are  the  blot  it  will 
leave  on  the  jurisprudence  of  the  country,  the  false  principles  to  which  it  has 
given  currency,  its  example  in  the  way  of  discipline,  and  the  abuses  of  power  to 
which  it  may  lead. 

On  the  first  of  these  heads  we  think  it  unnecessary  to  say  much.  When  men  are 
hanged  with  impunity,  no  trial  having  been  had,  to  avert  a  danger  that  was  insep- 
arably connected  with  the  guilt  of  others,  and  these  last-named  guilty  escape, 
-even  unprosecuted,  after  being  completely  within  the  grasp  of  the  law,  it  is  impos- 
sible for  the  character  of  the  country  to  remain  untarnished.  Unless  the  guilt  of 
the  men  named  were  known,  it  was  a  crime  to  hang  the  others ;  if  known,  they 
should  be  punished.  We  can  understand  it  will  be  contended  that,  the  guilt  of 
the  executed  being  established,  strong  suspicions  of  the  guilt  of  the  others,  will 
be  sufficient.  We  do  not  admit  this  reasoning.  A  case  must  be  made  out  to 
justify  these  distrusts,  and  nothing  short  of  knowledge,  or  what  the  officers  had 
proper  reason  to  believe  knowledge  of  the  guilt,  is  sufficient.  This,  we  think, 
entirely  wanting,  as  the  record  will  show.  At  most,  it  was  only  one  man's  opin- 
ions, justified  by  other  men's  opinions.  Now  opinion  begets  opinion,  especially  in 
moments  of  excitement — in  this  case,  the  fact  is  actually  sworn  to — and  no  man 
is  safe  when  matters  are  pushed  to  extremes  on  such  loose  grounds. 

As  for  discipline,  a  low  and  discreditable  feeling  induces  many  to  think  this 
despotic  exhibition  of  the  power  of  the  quarter-deck,  will  have  the  effect  to  sus- 
tain it,  and  to  strengthen  authority.  Were  the  fact  so,  it  would  be  authority  un- 
justly obtained,  and  as  such  to  be  repudiated.  But,  it  is  not  so.  Discipline  is 
the  result  of  the  authority  exercised,  in  the  name  of  the  state,  by  the  few  over  the 
many.  Its  entire  virtue  exists  in  its  legality,  without  which  it  can  have  no  salu- 
tary or  permanent  existence.  It  is  true  that  dread  may  temporarily  be  struck  into 
the  breasts  of  a  crew,  by  an  execution,  but,  in  the  end,  the  principles  connected 
with  the  affair,  the  facts  of  the  case,  the  merits  or  demerits  of  the  procedure,  are 
all  certain  to  be  canvassed  and  understood,  bringing  the  whole  down  to  the  stan- 
dard of  a  severe  necessity.  The  essence  of  all  discipline  in  this  country,  is 
strictly  legality. 

As  respects  example,  the  effect  can  only  be  injurious.  Imagine  it  to%  have 
been  known  on  board  the  Somers  when  Mr.  Spencer  was  arrested,  that  a  scene 
similar  to  that  which  subsequently  occurred  on  board  the  brig,  had  actually  taken 
place  in  another  vessel,  would  Cromwell,  supposing  him  to  have  been  the  man 
alleged  and  guilty,  quietly  have  submitted  to  be  ironed,  with  the  prospect  of  being 
hanged  without  even  a  hearing?  Cases  may  occur,  in  which  stern  necessity 
shall  justify  an  officer  in  going  beyond  the  law,  as  it  would  justify  Captain  Mac- 
kenzie were  his  case  good,  and  in  which  the  crew  may  feel  it  safest  to  fight  for 
their  lives  at  once,  rather  than  to  yield  the  first  advantage,  pointing  to  this  very 
^example  for  their  justification. 


OF  THE  NAVAL  COURT  MARTIAL.  331 

It  is  the  height  of  weakness  to  set  up  anything  but  an  overruling  necessity,  as 
the  justification  of  Captain  Mackenzie's  course.  It  was  self-defence,  it  was  crime, 
or  it  was  a  grave  misunderstanding  of  his  situation,  of  his  duties,  and  of  the  dan- 
ger. As  relates  to  discipline,  in  every  point  of  view  it  must  be  pernicious.  It 
will  take  years  to  eradicate  the  injurious  influence  it  must  have  on  the  minds  of 
the  seamen  of  the  country.  Thousands,  who  are  not  disposed  to  think  ill  of  Cap- 
tain Mackenzie,  think  he  was  too  precipitate  in  the  case  of  Cromwell  at  least,  and 
seamen  must  long  have  misgivings  of  their  fate,  when  circumstances  throw  dis- 
trust on  them,  while  they  remember  that  at  least  one  American  seaman,  died  pro- 
testing his  innocence,  executed  without  a  hearing,  and  without  an  overt  act  of 
mutiny. 

The  effect  of  such  an  instance  of  authority,  on  the  minds  of  others,  an  author- 
ity exercised  without  the  forms  of  law,  while  there  remains  a  doubt  concerning 
the  guilt  of  all  the  accused,  or  of  the  necessity  of  the  act,  can  not  be  anything  but 
pernicious,  so  far  as  imitation  is  concerned.  Restraint,  in  such  cases,  is  for  the 
overbearing  and  vicious,  not  for  the  moderate  and  good.  Prudent  men  never 
exceed  the  due  limits  of  their  power,  while  the  indiscreet,  selfish,  unjust,  and 
exaggerated,  no  small  portion  of  the  human  family,  fall  into  this  error  sooner  than 
into  most  others. 

It  will  be  seen  we  have  made  an  issue  differing  from  that  presented  by  the 
judge  advocate.  This  gentleman,  if  we  rightly  understand  him,  throws  everything 
on  the  facts  of  the  case,  while  we  believe  the  justifiable  view  of  the  apparent  facts, 
after  due  inquiry  made,  is  the  controlling  feature.  In  one  thing  we  fully  concur 
with  Mr.  Norris.  It  was  incumbent  on  Captain  Mackenzie,  admitting  the  danger 
of  a  rescue  to  be  established,  to  use  every  available  means  to  ascertain,  not  the 
guilt  merely,  but  the  guilt  or  innocence  of  the  men  executed.  This,  in  a  case  of 
circumstantial  evidence,  could  not  be  done,  without  giving  the  party  implicated  a 
hearing.  In  our  view  of  the  matter,  the  violation  of  justice  connected  with  a  de- 
parture from  this  sacred  principle,  is  of  more  importance  to  the  country,  than  the 
preservation  of  a  dozen  brigs.  It  is  striking  at  the  root  of  all  right,  and  setting 
a  precedent,  which,  if  sustained  and  followed,  would  destroy  the  social  compact. 
When  we  say  "justifiable  view  of  the  apparent  facts,"  we  mean  just  inferences 
drawn  from  sufficient  evidence  ;  not  guess-work,  conjecture,  or  opinion  and  mis- 
takes. We  only  differ  from  Mr.  Norris  in  this  :  he  makes  the  truth  or  falsehood 
of  the  real  facts,  the  test,  while  we  think  Captain  Mackenzie  entitled  to  the  ben- 
efit of  any  error  by  falling  into  wrong  conclusions,  by  means  of  false  testimony, 
but,  which  testimony  he  was  justified  in  believing  true.  The  distinction  we  make 
can  be  shown  in  the  case  of  the  sentinel  who  shot  a  man  under  false  notions  of 
his  duty.  The  court  decided  that  the  sentinel  was  responsible  for  his  mistakes. 
This  was  clearly  right ;  but,  had  such  a  case  offered  to  the  sentinel  as  would  jus- 
tify him  in  believing  that  the  man  killed  was  bent  on  sinking  the  ship,  for  instance, 
we  conceive  the  sentinel  would  have  been  acquitted,  though  still  mistaken  in  the 
fact.  We  conceive  a  sentinel  could  be  punished  by  military  law,  for  not  having 
done  his  duty,  in  a  certain  state  of  facts,  as  they  presented  themselves,  though  the 
facts  actually  tended  to  deceive  him.  We  say  this  with  deference  to  the  judge 
advocate,  who  probably  is  a  much  better  lawyer  than  we  can  lay  any  claim  to  be, 
and  who,  so  far  as  one  can  judge  from  the  record,  is  a  man  of  acute  mind,  and 
every  way  disposed  to  do  his  duty.  As  for  the  point  of  law  which  made  it 
incumbent  on  Captain  Mackenzie  to  give  the  prisoners  a  chance  of  being  heard 
before  the  council,  we  have  said  nothing,  because  we  think  it  beyond  all  contro- 


332  REVIEW  OF  THE  PROCEEDINGS 

versy,  and  because  it  is  so  strongly  presented  in  the  record.     This  was  the  great 
point  in  the  case  of  Governor  Wall. 

As  we  have  intimated  that,  in  our  view,  want  of  judgment,  and  a  disposition  to 
view  one  side  of  a  case  so  intensely  as  to  forget  it  may  have  another,  lie  at  the 
root  of  this  matter,  we  will  illustrate  the  power  of  discretion  that  Captain  Mac- 
kenzie possesses,  by  evidence  drawn  from  facts  that  have  been  incidentally  shown 
in  the  course  of  these  very  proceedings.  In  doing  this,  we  will  present  a  point 
connected  with  the  falling  off  of  the  discipline  of  the  brig,  which  has  weight  with 
us,  and  which  we  have  specially  reserved  to  be  introduced  in  this  connexion. 

The  Somers  goes  to  sea  with  two  more  officers  in  her  steerage  than  she  was 
intended  to  carry,  or  could  properly  accommodate.  She  has  on  board  a  lieutenant, 
a  passed  midshipman,  acting  as  master,  and  six  midshipmen,  three- of  whom  are 
warranted,  and  three  are  acting.  Two  of  these  midshipmen,  Messrs.  Rodgers 
and  Thompson,  had  been  in  the  navy  five  years  and  less  than  nine  months,  when 
the  execution  occurred ;  one  four  years,  and  less  than  nine  months  ;  and  the  three 
acting  midshipmen  about  a  year,  thirteen  months,  and  five  months.  The  officers, 
in  the  first  place,  are  put  in  four  watches,  giving  one  of  these  watches  to  a  young 
gentleman,  who  had  not  been  in  the  service  five  years.  It  is  unusual,  we  believe, 
to  have  the  officers  in  more  than  three  watches  in  small  vessels,  and  midshipmen 
less  frequently  than  those  of  higher  rank.  In  order  to  give  Mr.  Hays  a  watch, 
•Mr.  O.  H.  Perry  was  ordered  to  do  midshipman's  duty,  and  this  with  a  crowded 
steerage.  The  motive  may  possibly  be  reversed,  and  this  arrangement  made  to 
allow  Mr.  O.  H.  Perry  to  do  midshipman's  duty.  Now,  we  conceive  Captain 
Mackenzie  had  no  legal  right  to  make  his  clerk,  though  his  nephew,  act  as  a  mid- 
shipman, unless  in  a  case  of  vacancy  and  necessity,  and  then  only  by  rating  him 
as  such.  This  fact  alone  may  have  led  to  dissatisfaction.  The  sensitiveness  of 
men  to  rank  is  great,  and  they  will  sooner  obey  an  indifferent  captain  than  a  clev- 
er lieutenant.  This  was  ordinary  service,  and  no  extraordinary  rules  were  ne- 
cessary. It  is  shown,  that  Captain  Mackenzie  rebuked  Mr.  O.  H.  Perry,  his 
clerk,  doing  midshipman's  duty,  with  a  crowded  steerage,  when  the  mast  was  car- 
ried away,  for  his  carelessness.  Had  not  Mr.  O.  H.  Perry  been  set  at  duty  that 
did  not  belong  to  his  station,  neither  the  carelessness  nor  the  rebuke  would  have 
occurred.  The  reason  why  Mr.  Perry  was  thus  employed,  is  obvious  enough. 
He  bears  a  distinguished  name,  a  naval  name,  belongs  to  a  naval  family,  and 
doubtless  wished  to  enter  the  navy  regularly,  and  advance  as  others  advance.  A 
recent  law  of  Congress,  however,  prevented  any  appointment  except  to  fill  va- 
cancies, and  Mr.  O.  H.  Perry  goes  to  sea  as  his  uncle's  clerk,  taking  his  chances 
of  preferment.  The  name  and  family  claims  of  this  young  gentleman  might 
possibly  justify  Congress  in  passing  a  special  act  to  admit  him  to  the  service,  but 
Captain  Mackenzie  was  bound  to  take  the  law  as  he  found  it.  As  it  was,  he  as- 
sumed an  authority,  with  no  sufficient  reason,  that  the  secretary  himself  was 
prohibited  from  exercising. 

The  Somers  had  a  peculiar  crew  ;  substantially  one  of  apprentices.  Of  120  souls 
on  board,  96  were  under  age.  Boys  can  not  govern  boys ;  the  last  notoriously 
require  the  authority  of  men.  On  board  a  vessel-of-war,  there  are,  or  ought  to 
be,  two  principal  officers  in  each  watch  ;  one  of  whom — the  superior — usually 
remains  on  the  quarter-deck,  and  the  other,  on,  or  near,  the  forecastle. 
The  first  is  commonly  a  lieutenant,  the  last  an  old  midshipman,  a  passed  mid- 
shipman, or,  in  very  large  vessels,  frequently  a  young  lieutenant. 

Of  all  sorts  of  crafts,  one  manned  with  apprentices  most  required  steady  and 


OF  THE  NAVAL  COURT  MARTIAL.  333 

experienced  officers.  The  very  equipment  and  officering  of  the  Somers  denote 
ignorance  and  want  of  judgment.  The  vessel  was  unsuited  for  such  a  crew, 
which  she  could  not  conveniently  berth.  A  lightly-sparred  sloop-of-war  would 
have  been  far  more  appropriate,  and  the  officers  ought,  in  particular,  to  have 
been  chosen  for  their  steadiness,  experience,  and  absence  of  exaggeration  of  char- 
acter. How  far  Captain  Mackenzie  advised  the  arrangement  under  which  the 
Somers  went  to  sea,  it  is  out  of  our  power  to  say  ;  its  responsibility,  however, 
rests  with  those  who  ordered  it.  We  conceive  a  worse  one  could  not  have  been 
made.  As  respects  the  judgment  with  which  the  officers  were  employed  in  the 
watches,  Captain  Mackenzie  is  the  arbiter.  By  that  arrangement,  he  put  four  youths, 
the  oldest  of  whom  was  not  nineteen,  and  the  three  others  ranging  from  sixteen 
to  seventeen,  in  charge  of  his  brig's  forecastle.  Now,  to  us,  there  is  nothing 
surprising  if  a  little  carelessness  and  wilful  conduct  became  apparent  forward, 
with  such  boys  in  charge  of  boys.  In  order  to  effect  this  Captain  Mackenzie 
made  his  clerk  do  midshipman's  duty  !  Cromwell,  for  instance,  a  seaman,  a 
navigator,  is  made  to  serve  under  a  boy  of  sixteen,  who  had  not  the  least  legal 
right  to  command  him,  and  who,  by  his  own  showing,  could  not  understand  a 
delicate  order  from  the  quarter-deck  when  given  to  him.  We  say  no  legal  right 
to  command,  for  authority  can  only  be  deputed  in  a  prescribed  form,  and  this 
form  was  not  observed.  Captain  Mackenzie  was  arbitrarily  and  unnecessarily 
invading  a  positive  provision  of  law,  when  he  made  his  clerk  act  as  a  midshipman. 
In  all  this,  we  see  great  want  of  judgment.  By  the  very  best  distribution  of  his 
officers,  Captain  Mackenzie  would  have  had  a  badly-constituted  authority  for 
such  a  crew ;  but  he  selected  the  worst,  transcending  the  law  to  do  so.  The  sec- 
retary of  the  navy  can  not  give  a  letter  of  appointment  until  a  vacancy  occur ; 
but,  Captain  Mackenzie,  with  family  objects  in  view,  assumes  the  right  to  depute 
the  authority  and  responsibility  that  such  a  letter  would  convey,  to  one  nowise 
empowered,  in  law,  to  receive  it. 

Let  us  follow  up  this  evidence  of  a  want  of  judgment.  In  his  report,  he  rec- 
ommends this  clerk  to  fill  ll\e  vacancy  made  by  the  death  of  the  officer  executed. 
Not  satisfied  with  this,  he  sends  this  boy  to  Washington,  with  his  original  account 
of  the  transaction,  as  if  purposely  to  thrust  him  into  a  situation  to  attract  atten- 
tion. In  a  case  of  this  sort,  it  was  clearly  proper  to  send  one  who  could  answer 
questions,  and  make  all  necessary  explanations ;  but  Captain  Mackenzie  sends  a 
boy.  We  see  the  consequence  of  this  ill-judged  act,  in  the  difficulty  about  the 
letter.  Comment  is  unnecessary.  The  mildest  construction  that  these  facts 
warrant,  is  a  lamentable  deficiency  of  judgment. 

Add  to  the  foregoing,  his  whole  report — his  request  to  be  continued  in  com- 
mand of  the  Somers  ;  his  recommendation  of  his  own  witnesses  to  advancement 
in  their  profession,  previously  to  his  own  trial;  his  virtual  adoption  of  the  doc- 
trine that  an  American  man-of-war  is  always  to  be  sufficient  for  her  own  wants, 
except  in  cases  in  which  she  can  get  under  other  American  guns  ;  his  application 
of  even  this  principle,  absurd,  contradictory,  and  untenable  as  it  is,  to  this  par- 
ticular case,  when  the  case  involved  no  necessity  for  any  contrary  course,  and,  in 
short,  all  his  reasoning,  most  especially  in  reference  to  the  proojs  of  the  guilt  of 
Cromwell,  and  we  see  no  alternative  but  the  darkest  and  most  revolting  crime,  or 
gross  deficiency  of  judgment.  The  last  we  suppose  to  be  the  true  solution  of 
the  difficulty,  coupled  with  certain  circumstances  that  we  shall  presently  mention. 

In  examining  this  case,  it  must  be  remembered,  that  such  is  the  character  of 
the  mind  that  was  called  on  to  judge  of  the  nature  of  the  crisis  that  had  occurred 


334  REVIEW  OF  THE  PROCEEDINGS 

on  board  the  Somers.  If,  on  the  one  side,  it  be  deemed  fair  to  introduce  testi- 
mony of  Cromwell's  previous  bad  character  as  evidence  of  guilt,  it  is  certainly 
fair,  even  though  compelled  to  go  beyond  the  record,  to  cite  instances  of  the 
character  of  the  judgment  that  presided  over  a  case,  in  which  a  large  portion  of 
the  defence  is  limited  to  opinions,  appearances,  conjectures,  and  inferences.  We 
do  not,  however,  go  beyond  the  record. 

The  circumstances,  coupled  with  error  of  judgment,  which  we  think  have  had 
an  influence  on  this  sad  transaction,  are  these.  After  the  arrest  of  Mr.  Spencer, 
it  is  evident  from  the  testimony  that  Messrs.  Mackenzie  and  Gansevoort  began  to 
see  an  enemy  in  every  bush.  We  do  not  wish  to  say  that  they  were  frightened 
in  the  abject  sense,  but,  that  their  minds  were  in  that  condition  in  which  they 
were  most  disposed  to  exaggerate.  The  affair  of  the  mast  occurred,  and  we 
conceive  no  stronger  evidence  can  be  given  of  the  state  of  the  minds  of  these  two 
gentlemen,  than  the  fact  that  they  should  imagine  mutineers  went  aloft  to  plot; 
with  the  certainty,  too,  of  having  some  among  them  who  were  not  in  their  secret. 
It  can  be  gleaned  from  the  evidence  that  Mr.  Gansevoort  was  in  constant  communi- 
cation with  some  of  the  petty  officers,  who,  by  their  own  showing,  were  advisers  of 
the  worst  sort.  These  men  both  feared  and  disliked  Cromwell,  and  the  last  soon 
got  to  be  a  bugbear  to  the  commander  and  his  first  lieutenant.  It  was  determined 
to  arrest  him,  and  the  preparations  that  were  made  for  that  purpose  speak  vol- 
umes. The  fact  that  a  single  man  was  met  with  a  cocked  pistol,  as  he  descended 
in  the  centre  of  a  group  of  armed  officers,  betrays  the  exaggerated  feeling  which 
prevailed.  It  is,  altogether,  the  most  unofficer-like  procedure  we  ever  heard,  or 
read  of,  if  we  remember  that  not  a  single  overt  act  of  mutiny  had  occurred.  It 
is  not  sufficient  to  say,  we  thought  the  mast  was  carried  away  to  seize  the  brig, 
we  thought  the  plotting  aloft  was  to  seize  the  brig ;  no  attempt  had  been  made  to 
seize  the  brig,  and  the  just  conclusion  from  the  facts  is,  that  none  was  contem- 
plated. In  a  word,  nothing  had  occurred  to  induce  this  casting  aside  of  the  or- 
dinary composure  and  dignity  of  acknowledged  authority. 

Then  a  pistol  went  off.  Small  is  arrested  ;  after  which  occurred  the  rush  aft, 
when  the  mast-rope  was  manned.  Mr.  Gansevoort  met  the  men  with  a  cocked 
pistol  again,  and  was  very  near  shooting  Wilson.  Captain  Mackenzie  ran  below 
and  got  his  pistols,  and  there  was  another  scene. 

This  last  alarm  proved  to  be  unnecessary,  but  it  had  produced  a  scene.  A 
night,  with  its  reflections,  followed,  and  every  one  must  see  that  the  exhibitions 
already  made  on  the  quarter-deck  left  the  necessity  of  supposing  a  very  serious 
condition  of  things,  to  shield  the  commander  and  his  lieutenant  from  severe 
nautical  criticism.  Let  us  suppose,  for  instance,  that  the  matter  had  ended  there  ; 
the  prisoners  had  been  brought  in,  and  precisely  the  same  results  had  followed, 
as  respects  the  remainder  of  the  crew,  as  have  notoriously  followed,  and  what 
would  have  been  the  gossip  of  the  service  ?  Right  or  wrong,  and  in  some  re- 
spects we  think  they  were  right,  though,  in  the  main,  very  wrong,  these  gentlemen 
would  have  been  fortunate  to  escape  downright  ridicule. 

Now,  we  are  far  from  supposing  that  either  of  the  gentlemen  implicated,  dis- 
tinctly and  coolly  admitted  to  himself  the  dilemma  in  which  he  was  placed,  but 
we  can  easily  understand  that  men  so  situated  would  yield  to  the  influence  of 
such  facts,  in  a  measure  unconsciously  to  themselves.  Accordingly,  the  next 
day,  we  find  the  mutiny  assuming  a  character  so  grave,  as  to  raise  the  question 
of  life  and  death,  in  relation  to  the  prisoners  already  made.  It  is  true,  this  ques- 
tion was  connected  with  the  necessity  of  arresting  more  prisoners ;  but  more  pris- 


OF  THE  NAVAL  COURT  MARTIAL.  335- 

oners  were  not  arrested  until  it  had  been  decided  to  call  a  council,  and  those  thus 
arrested,  have  been  set  at  liberty  since,  without  even  a  trial !  The  reader  must 
not  suppose  that  anything  material  had  occurred,  between  the  time  when  Crom- 
well was  arrested,  on  suspicion;  and  that  in  which  the  officers  began  to  discuss  the 
contingency  of  hanging  him,  to  make  his  case  any  worse.  It  must  always  be 
borne  in  mind,  that  much  the  greater  portion  of  the  testimony  that  has  since  ap- 
peared in  this  affair,  was  not  in  the  least  alluded  to,  at  the  time  the  question  of 
lianging  was  first  raised.  This  was  on  the  2Sth,  and  King's  absurd  story  about 
the  handspikes,  Wales's  also,  all  that  relates  to  the  papers  seen  by  the  different 
boys,  and  indeed  all  the  testimony  of  the  crew,  such  idle  gossip  as  passed  between 
the  petty  officers  and  Mr.  Gansevoort  excepted,  was  still  in  the  womb  of  time. 
It  would  seem  to  be  established  by  the  testimony,  that  when  the  question  of  life  and 
death  was  first  agitated,  very  little  more  evidence  was  in  Captain  Mackenzie's  pos- 
session, than  he  had  at  the  moment  of  CromweWs  arrest.  We  conceive  that  this 
circumstance  proves  a  good  deal,  and  manifests  that  some  extraordinary  caus& 
was  influencing  the  parties. 

There  is  another  fact,  that  deserves  to  be  mentioned  particularly :  There  is  no- 
evidence  to  show  that  Captain  Mackenzie,  in  his  own  person,  ever  questioned 
any  of  those,  whose  opinions  delivered  through  Mr.  Gansevoort,  had  so  much  in- 
fluence. When  staggered  by  Mr.  Spencer's  solemn  assertions  of  Cromwell's 
innocence,  he  permitted  Mr.  Gansevoort  to  consult  these  petty  officers,  and  took 
even  their  worthless  opinions  at,  second  hand!  If  this  does  not  argue  a  "  fixed 
idea,"  it  seems  to  us  to  argue  something  even  worse. 

The  manner  in  which  Captain  Mackenzie  relates  the  arrest  of  Cromwell,  in  his 
official  report,  too,  to  us  carries  an  air  of  consciousness.  It  is  a  failing  of  this 
report  that  it  is  childishly  minute.  And,  yet,  Captain  Mackenzie  says  not  a  word 
of  Mr.  Gansevoort's  presenting  a  cocked  pistol  at  Cromwell,  &c.,  but  gives  this 
account  of  the  matter,  p.  199  :  "  /  met  him  at  the  foot  of  the  Jacob's  ladder  sur- 
rounded by  the  officers,  guided  him  aft  on  the  quarter-deck,  and  caused  him  t» 
sit  down,"  &c.  Even  the  accidental  explosion  of  the  pistol  that  went  off  in  Mr, 
Gansevoort's  hand  is  mentioned  out  of  its  place,  and  in  these  words,  p.  209  : 
"  The  single  accidental  explosion  that  took  place  [after  saying  that  the  officers 
carried  their  pistols  'cocked  for  hours  together'],  was  from  a  very  delicate  weapon, 
a  repeating  pistol,  in  the  hand  of  the  first  lieutenant,  when  I  was  arresting  Crom- 
well in  the  night."  Now  this  course  is  pursued  in  relation  to  these  two  events, 
by  the  man  who  is  so  graphically  minute  as  to  say,  when  describing  the  execu- 
tions, p.  207  :  "  At  length  Browning  saluted  me,  and  said,  *  Mr.  Spencer  says  he 
can  not  give  the  word,'  "  £c.  Now  Mr.  Gansevoort,  before  the  court  of  inquiry, 
according  to  the  Tribune's  report,  and  we  presume  such  a  fact  would  hardly  be 
invented,  says:  "As  soon  as  he  [Cromwell],  came  upon  the  Jacob's  ladder,  / 
cocked  my  pistol  and  pointed  it  at  him,  and  when  he  got  on  deck,  J  told  him  thn- 
captain  wished  to  see  him.  When  he  came  to  the  captain  he  was  ordered  to  sit 
down"  &c.  Here,  then,  these  two  gentlemen  seem  to  contend  for  the  honor  of 
this  exploit,  in  the  first  place,  certainly  giving  very  different  accounts  of  the  affair, 
and  then  it  is  worthy  of  remark,  that  Mr.  Gansevoort,  who,  if  the  Tribune's  re- 
port be  true,  volunteered  this  statement,  before  the  court  of  inquiry,  is  silent  about 
his  own  agency  in  the  affair  before  the  court  martial.  The  discrepancy  is  signifi- 
cant, and  throws  a  shade  of  discredit  on  either  the  report  or  the  testimony  of  Mr, 
Gansevoort,  while  the  consciousness  that  is  seen  in  all  that  relates  to  Cromwell's 
arrest  is  we  think  manifest. 


336  REVIEW  OF  THE  PROCEEDINGS 

By  referring  to  the  depositions  taken  by  the  council  of  officers,  it  will  be  seen 
that  the  witnesses  sustain  their  opinions  by  the  necessity  of  guarding  so  many 
prisoners  ;  prisoners,  of  whom  the  majority  were  put  in  irons,  simultaneously  with 
the  sitting  of  the  council,  and,  of  which  majority,  scarcely  a  shadow  of  evidence 
exists  against  one,  while  the  whole  four,  after  weeks  of  confinement  in  port,  have 
since  been  left  to  go  unprosecuted. 

In  this  connexion  it  is  important  to  ascertain  the  true  character  of  the  council ; 
whether  it  were  a  body  convened  to  guide,  or  to  sustain  the  decision  of  the  com- 
mander. If  the  last,  distrust  is  thrown  over  all  its  proceedings.  The  circum- 
stance that  the  subject  of  the  executions  was  discussed  as  early  as  the  28th,  the 
council  meeting  on  the  morning  of  the  30th,  tells  a  great  deal,  composed  as  the 
council  was,  of  a  lieutenant  in  the  confidence  of  the  commander,  and  who  had 
gone  through  the  scenes  of  the  arrest,  and  of  the  mast-rope  with  him,  paripassu; 
of  a  purser  who  had  been  in  the  navy  less  than  sixteen  months,  and  who  proba- 
bly was  then  in  his  first  vessel,  a  sea-service  of  some  six  or  eight  months ;  an 
assistant  surgeon,  nervous  from  ill-health;  and  four  midshipmen,  one  passed,  the 
captain's  nephew ;  another,  whom  he  admits  to  be  connected  with  him,  and  under 
his  especial  care ;  and  the  two  others  very  young  gentlemen,  though  under  no 
particular  circumstances  to  attract  remark.  Now  it  strikes  us,  if  this  council  were 
intended  to  guide,  or  to  materially  influence  Captain  Mackenzie's  decision,  he 
would  have  waited  for  that  decision  before  he  made  up  his  own  mind  what  was  to 
be  done,  and  how  it  was  to  be  done.  That  he  did  not,  can  be  established  by  his 
own  showing.  The  ambition  of  the  author  has  let  us  into  the  secrets  of  the  com- 
mander, in  more  than  one  instance.  At  p.  203,  Captain  Mackenzie  tells  us  in 
his  report:  "The  officers  were  stationed  about  the  decks,  ACCORDING  TO  THE 
WATCH-BILL  I  HAD  MADE  OUT  THE  NIGHT  BEFORE,  and  the  petty  officers  were 
similarly  distributed,  with  orders  to  cut  down  whoever  should  let  go  the  whip, 
with  even  one  hand,  or  fail  to  haul  on  it  when  ordered."  As  the  report  of  the 
council  was  not  made  until  about  eleven  of  the  day  of  the  execution,  this  proves 
unanswerably  how  far  it  influenced  Captain  Mackenzie's  decision. 

Our  own  opinion,  judging  from  all  the  facts  as  they  are  exhibited  in  the  testi- 
mony, is  that  Captain  Mackenzie  exaggerated  the  danger,  exactly  as  we  think  we 
have  shown  he  has  exaggerated  the  facts,  in  a  report  written  a  fortnight  after  the 
executions. 

We  hope  that  one  good  effect,  at  least,  will  result  from  this  affair.  The 
trial  of  cases  like  this,  should  at  once  be  put  exclusively,  except  in  those 
beyond  the  reach  of  the  tribunals,  into  the  hands  of  the  civil  courts. 
Military  men  are, not  qualified,  as  a  rule,  for  such  an  investigation.  This  is 
shown  by  several  questions  in  this  very  case,  that  were  put  by  members  of  the 
court.  At  p.  86,  the  question  was  asked  whether  Captain  Mackenzie  discovered 
any  "  unmanly  fear,"  and  whether  the  Somers  were  "  in  a  state  to  sustain  the 
honor  of  the  American  flag,"  previously  to  the  executions.  It  is  not  easy  to  see 
what  either  of  these  questions  had  to  do  with  the  issue.  Men  are  not  to  be  hang- 
ed, in  order  to  put  a  vessel  in  a  state  to  do  honor  to  the  American  flag,  unless 
guilty,  and  there  exists  other  necessity  for  taking  their  lives.  There  is  no  reason 
why  an  officer  of  a  man-of-war  should  be  put  on  a  different  footing,  under  a  charge 
of  murder  at  sea,  from  a  merchant-officer.  Had  the  last  been  tried,  and  three  of 
his  jury  found  him  guilty  he  would  not  have  been  acquitted.  On  the  other  hand, 
nine  might  have  hanged  Captain  Mackenzie. 

Then  few  laymen  understand,  and  few  feel  the  wise  distinction  between  legal 


OF  THE  NAVAL  COURT  MARTIAL.  33? 

add  moral  malice.  Still  it  was  a  distinction  that  was  very  important  in  this  case. 
It  is  true  the  judge  advocate  pointed  out  all  this,  and  pointed  it  out  distinctly  and 
well,  but  he  was  so  situated  that  it  did  not  come  from  him  with  the  same  author- 
ity it  would  have  come  from  the  bench.  It  is  understood  one  more  member  of 
the  court  voted  for  guilty  of  illegal  punishment,  for  instance,  than  voted  for 
guilty  of  murderj  and  we  take  it  for  granted  that  this  member  drew  a  distinction 
between  legal  and  moral  malice,  that  the  law  does  not,  and  ought  not  to  recogj 
nise.  Beyond  a  question,  if  Captain  Mackenzie  were  guilty  of  any  crime,  as  con- 
nected with  the  executions*  he  was  guilty  of  murder.  The  malice  prepense  applies 
only  to  the  intent  to  kill,  and  as  there  can  be  no  question  when  a  man  is  deliberately 
hanged,  that  the  intent  was  to  take  his  life,  if  the  killing  were  not  justifiable,  or 
excusable,  it  could  legally  be  nothing  else.  Questions  of  moral  guilt  would 
arise,  in  such  a  case,  and  the  decision  on  that  point  would  be  very  likely  to  be 
in  Captain  Mackenzie's  favor;  but  this  would  be  solely  a  question  for  the  ex- 
ercise of  the  pardoning  power. 

To  say  that  none  but  professional  men  could  understand  such  a  case,  is  idle. 
The  same  reasoning  would  render  a  jury  of  doctors  necessary  in  all  cases  of  poi- 
soning, and  a  jury  of  shoemakers  on  all  disputes  about  boots.  The  result  of* 
this  very  case  shows  how  professional  men  can  differ,  leaving  the  strong  proba-* 
bility  that  professional  prejudices  had  more  to  do  with  some  of  their  votes,  than 
professional  knowledge.  There  is  another  point  connected  with  the  organization 
of  this  court  that  has  never  been  publicly  alluded  to,  we  believe.  Three  gentle- 
men were  detailed  for  the  court  originally,  who  were  subsequently  excused.  It 
has  been  stated  that  several  of  the  officers  originally  selected,  frankly  said  that 
their  opinions  were  adverse  to  Captain  Mackenzie,  having  read  the  testimony  be- 
fore the  court  of  inquiry,  and  asked  to  be  excused*  We  never  heard  that  this 
was  the  case  with  either  of  the  three  gentlemen  named  in  the  first  order,  and 
therefore  venture  no  opinion  as  respects  them;  but  we  know  from  the  best  authority, 
it  was  the  case  as  respects  one  captain,  who  was  not  named  in  the  first  order,  only 
for  this  reason.  This  was  all  perfectly  right;  but  were  there  not  gentlemen  on 
the  court  who  had  openly,  and  strongly,  and  warmly  expressed  their  opinions  the 
other  way?  Was  due  care  taken  on  this  point?  This  is  one  of  the  evils  which 
result  from  the  encroachments  of  the  press,  which  will  soon  overshadow  all  that 
is  left  of  justice  in  the  country,  unless  checked.  The  record  of  no  court  of  in- 
quiry ought  to  be  published  until  the  case  is  finally  disposed  of,  nor,  as  we  think, 
the  evidence  in  any  trial.  Nothing  is  gained  by  it,  but  catering  to  a  vicious  taste, 
or  morbid  curiosity,  while  much  may  be  lost  to  the  rightful  administration  of 
justice. 

We  have  dwelt  less  on  the  evidence  in  this  case,  than  we  might  otherwise  have 
done,  did  it  not  strike  us  as  being  so  strongly  characterized  as  generally  to  let  its 
true  value  be  seen.  The  circumstances  were  such  as  imperiously  to  require  in- 
disputable affirmative  evidence — so  far  as  the  human  mind  can  judge  of  evidence 
by  the  ordinary  signs — both  of  the  necessity  of  the  execution,  and  of  the  guilt 
of  the  parties  executed  ;  and  any  one  accustomed  to  analyze  facts  may  judge  for 
himself,  how  far  these  conditions  were  fulfilled*  It  is  worthy  of  remark  that  the 
judge  advocate,  p.  223,  after  examining  several  of  the  boys,  to  show  that  they  had 
never  detected  any  symptoms  of  an  attempt  at  a  rescue,  or  heard  anything  of  th« 
mutiny,  offered  to  introduce  any  person  the  defence  could  name,  as  a  witness  for  the 
government,  to  establish  the  fact  more  fully  than  it  had  been  done.  This  leaves 
the  iust  inference  that  the  case  of  the  defence  is  complete,  so  far  as  it  bad  evidence 

43 


338  REVIEW  OF  THE  PROCEEDINGS 

in  reserve.  It  may  be  added  that  Anderson,  much  the  most  respectable  of  the 
petty  officers,  and  who  was  sent  aloft  immediately  when  the  mast  went,  testifies 
as  follows  at  p.  225,  in  reference  to  what  was  passing  aloft,  and  in  reference  to 
the  mode  of  talking  about  the  decks,  after  the  arrests,  in  answer  to  this  question, 
viz.  :  Question :  "  Were  those  people  up  there  talking  in  their  usual  tone  ?" 
Answer:  "  In  a  low  tone  ;  the  same  as  they  and  the  rest  of  the  crew  talked  about 
the  decks  ;  I  SAW  NO  ALTERATION  IN  THEIR  TALK  ABOUT  THE  DECKS,"  &c. 
It  is  necessary  for  the  reader  to  understand  that  loud  talking  is  not  allowed  on  the 
deck  of  a  man-of-war,  even  among  the  officers.  Anderson  was  then  asked  if  he 
could  have  heard  what  was  said,  and  his  answer  was  :  "  Yes,  sir."  This  is  the 
opinion  of  one  who  was  in  the  confidence  of  the  officers,  and  who  had  been  di- 
rected to  keep  an  eye  about  him.  This  man  saw  no  attempt  to  communicate 
with  the  prisoners.  His  account  of  facts,  so  far  as  it  goes,  is  entitled  to  respect. 

We  have  taken  a  view  of  this  affair  that  will  probably  give  satisfaction  to  those 
who  hold  extreme  opinions  on  neither  side.  We  are  quite  conscious  a  case  much 
stronger  than  that  we  have  presented,  and  one  sustained  by  very  plausible  argu- 
ments, and  a  respectable  show  of  testimony,  might  be  brought  against  Captain  Mac- 
kenzie and  several  others  in  the  Somers,  while  we  do  not  think  less  than  what  we 
have  here  shown  ought,  under  any  circumstances,  to  be  adduced  against  their 
course  ;  but  we  have  preferred  to  keep  within  such  limits  as  we  think  the  facts 
will  warrant,  in  the  fullest  manner.  We  have  had  some  occasions  for  understand- 
ing the  mind  of  Captain  Mackenzie,  and  we  ascribe  more  to  its  peculiarities,  per- 
haps, than  total  strangers  and  severe  judges  might  be  disposed  to  yield. 

There  is  one  marked  point,  however,  on  which  we  think  Captain  Mackenzie's 
defence  has  failed  signally,  in  a  moral  sense  at  least,  if  not  in  a  legal.  He  should 
have  been  prepared  to  defend  his  course,  by  the  facts  as  they  offered  at  the  time 
of  the  execution.  Instead  of  this,  recourse  has  been  had,  not  only  to  testimony 
about  which  he  knew  nothing,  on  the  1st  December,  but  to  all  sorts  of  charges, 
imputations,  and  circumstances,  that  might  be  supposed  to  affect  the  character  of 
the  men  hanged,  even  though  totally  unconnected  with  the  mutiny.  Cromwell 
has  been  particularly  marked  out  for  this  sort  of  attack,  though  the  only  charge  of 
this  nature  which  could  be  put  to  the  test  of  proof,  altogether  failed  on  inquiry. 
It  would  also  seem  that  Small  was  never  in  a  slaver,  the  testimony  of  Mr.  Hoi- 
brook  (p.  53),  leaving  this  point  almost  beyond  a  doubt.  One  of  the  charges 
against  Small,  too,  was  that  he  had  said  he  once  killed  a  "  nigger"  on  the  coast 
of  Africa.  With  his  dying  breath  he  affirmed  he  had  never  killed  a  man,  leaving 
the  inference  probable  that  every  light  saying  of  the  prisoners  had  been  dragged 
into  the  account  against  them,  and  that  some  had  doubtless  been  invented.  A 
clear  and  justifiable  case  ought  to  maintain  itself  most  strictly  on  the  merits.  The 
guilt  of  all  the  parties  should  have  been  incontestable — the  danger  of  a  rescue  be- 
yond a  question,  and  the  necessity  of  taking  this  particular  step  so  clear  as  to 
silence  cavilling.  Facts,  not  opinions,  should  have  been  relied  on,  and  facts  of 
so  clear  a  character  as  to  admit  of  no  dispute.  A  vessel-of-war  makes  the  apol- 
•ogy  of  doubt,  distrust,  and  uncertainty,  with  a  miserable  grace.  The  argument 
of  the  danger  to  commerce,  and  of  the  ravages  contemplated  by  the  mutineers, 
though  it  figures  so  largely  in  the  defence,  is  one  of  the  poorest  that  could  be  of- 
fered, being  in  truth  a  reflection  on  the  understanding  of  the  community.  If  the 
legal  conditions  of  a  proper  defence  were  fulfilled,  it  was  unnecessary;  if  not  ful- 
filled, the  reasoning  falls  of  its  own  weight.  A  man  who  felt  secure  of  his  facts 
and  principles,  ought  to  disdain  to  use  it.  Captain  Mackenzie,  and  no  other  man, 


OF  THE  NAVAL  COURT  MARTIAL. 


339 


has  a  right  to  hang  a  fellow-creature,  where  a  douht  exists  of  the  justice  and  ne- 
cessity of  the  measure,  because  ships  may  be  robbed  at  sea.  If  there  be  no  doubt, 
the  latter  argument  is  supererogatory. 

There  is  one  point  in  connexion  with  Mr.  Spencer,  to  which  we  have  already 
alluded,  but  about  which  we  have  hesitated  uttering  the  thoughts  that  suggest 
themselves.  Mr.  Gansevoort  acted  throughout  with  a  perfect  intelligence  with  hia 
commander.  This  much  the  latter  himself  admits.  Let  the  reader  regard  the 
facts.  On  the  28th,  some  of  the  officers  begin  to  discuss  the  necessity  °of  exe- 
cuting the  three  prisoners,  should  more  arrests  occur.  On  the  29th,  Mr.  Spencer 
broke  down  in  spirits,  passed  the  day  in  tears,  expressed  penitence,  and  a  desire 
to  disburthen  his  mind.  On  the  morning  of  the  30th,  the  letter  was  written  to  the 
council,  and  soon  after  four  more  arrests  were  made — arrests  of  men  who  have 
not  even  had  charges  brought  against  them.  At  p.  45,  will  be  found  the  follow- 
ing question  and  answer,  between  the  Judge  Advocate  and  Mr.  Gansevoort: — 

Q.  "  Why,  and  on  what  day,  did  you  take  Mr.  Spencer  the  papers  found  in  his 
locker  ?" 

A.  "  I  am  under  the  impression  it  was  on  the  30th  ;  for  the  purpose  of  HIS 
PROVING  MORE  CLEARLY  HIS  GUILT  ;  I  took  him  the  paper  that  he  might  trans- 
late it,  50  I  could  understand  it ;  MY  OBJECT  WAS  TO  OBTAIN  FROM  HIM  AN  AC- 
KNOWLEDGMENT OF  HIS  GUILT." 

Not  by  a  frank  explanation — not  by  telling  him  what  was  in  progress,  but,  evi- 
dently, to  use  on  an  occasion  like  that  which  subsequently  occurred.  Here  was 
this  young  man,  then,  furnishing  materials  for  his  own  condemnation,  unconscious 
of  the  danger  he  ran.  A  youth  of  nineteen,  ironed  hands  and  feet,  destroying 
himself  in  the  confidence  of  penitence,  while  his  admissions  were  borne  away  to  a 
secret  conclave,  that  only  waited  for  testimony  to  pronounce  its  doom,  and  to  ob- 
tain the  "  CONCURRENCE"  of  a  commander  who  had  drawn  up  the  programme  of 
the  executions,  hours  before  that  doom  was  rendered  !  We  only  hope  that  those 
who  boast  of  American  justice,  and  who  delight  to  put  it  in  brilliant  contrast 
with  that  of  other  lands,  will  sometimes  recall  these  facts,  in  connexion  with  the 
result  of  this  trial. 

It  strikes  us,  nothing  but  such  an  admission  was  wanting  to  complete  the  fea- 
tures of  a  case  in  which  men  were  sent  to  the  gallows,  with  no  obstacle  to  pre- 
vent, without  giving  them  a  hearing !  The  application  to  Small,  touching  Crom- 
well's guilt,  was  much  of  the  same  character  as  to  design,  though  less  offensive  to 
fair-dealing,  while  the  testimony  was  infinitely  less  conclusive. 

If  an  act  like  this  can  be  justified  at  all,  it  is  only  by  the  extremest  jeopardy. 
It  certainly  can  not  by  a  case  of  danger  that  is  proved  by  means  of  queries,  con- 
jectures, opinions,  and  inferences,  that  subsequent  investigations  have  falsified  in 
a  hundred  ways  ;  and  which  needs  ex  post  facto  evidence  to  render  it  in  the  least 
plausible. 

We  owe  it  to  ourselves  to  say,  that  the  record  has  reached  us  so  irregu- 
larly, while  the  publishers  pressed  so  fast  for  copy,  as  to  render  our  examin- 
ation of  this  mutiny  less  compact  and  lucid  than  we  could  wish.  The  case 
was  not  wholly  before  us  when  we  began  to  write,  and  we  confess  that  the 
testimony,  as  it  has  become  more  fully  developed,  has  wrought  some  modifica- 
tions of  our  views,  which  will  possibly  be  apparent  to  die  reader.  As  the  changes 
have  been  adverse  to  the  case  of  Captain  Mackenzie,  however,  we  have  not 
thought  them  of  sufficient  importance  to  rewrite  the  earlier  portion  of  our  ar- 
ticle. As  an  instance  of  what  we  mean,  take  the  affair  of  the  mast.  All  the 


340  REVIEW  OF  THE   PROCEEDINGS 

evidence  in  the  record  that  refers  particularly  to  this  transaction  did  not  reach  us 
until  the  remarks  in  the  commencement  of  this  article  were  forwarded  to  the  pub- 
lishers.    Those  remarks  were  founded  on  well-established  general  truths,  and  we 
have  seen  no  sufficient  motive    for   cancelling   them  ;   but  the  particular  facts 
that  appear  on  the  cross-examinations,  give  a  color  to  the  affair  that,  goes  be- 
yond our  general  reasoning  ;  which,  however  just  we  may  conceive  it  to  be  in 
ilself,  and  however  applicable  to  what  we  conceive  it  was  the  duty  of  Captain 
Mackenzie,  to  see  and  infer,  is  not  as  broad  as  this  evidence  will  sustain.     The 
following  statement  will  justify  our  assertion.     Mr.  O.  H.  Perry  admits,  p.  173, 
in  reference  to  the  reproof  he  received  from  the  commander,  on  the  subject  of* 
the  mast,  "  I  said   [that  is  told  Captain  Mackenzie],  I  think,  I  understood  the 
order  to  have  been  TO  HAUL  on  the  brace."     It  is  true  he  swears,  on  the  same 
page:   "  The  order  as  I  understood  it  was  'A  SMALL  PULL  on  the  weather  main- 
royal-brace.'     I  passed  THAT  order."     But  this  last  explanation  is  given  only  to 
the  court;  to  Captain  Mackenzie  at  the  time,  Mr.  O.  H.  Perry  gives  reason  to 
think  he  "  understood"  the  order  to  have  been  to  "  HAUL"  on  the  brace  ;  leaving 
the  fair  inference  he  passed  that  order,  and  that  Small  acted  under  a  precise 
command  to  do  exactly  what  is  imputed  to  him.     Notwithstanding  this  statement 
of  Mr.  O.  H.  Perry,  Captain  Mackenzie  in  his  report,  and  in  all  his  subsequent 
proceedings,  gives  the  world  reason  to  believe  that  the  mast  was  carried  away  by 
design — contrary  to  orders,  in  effect!      We  can  see  but  one  possible  explanation 
of  this  course  of  Captain  Mackenzie's  (we  mean  short  of  imputing  crime  and  'malice 
to  him),  and  that  is  by  supposing  subsequent  explanations  with  Mr.  O.  H.  Perry, 
had  let  him  into  the  secret  of  the  real  facts,  and  that  he  knew  Mr.  O.  H.  Perry 
did  not  understand  the  order,  as  he  had  told  him  at  the  time,  he  did.     Mr.  Hays, 
however,  testifies,  p.  211,  that  he  had  heard  Mr.  O.  H.  Perry  say,  as  recently  as 
after  the  arrival  in  port,  "  that  he  understood  the  order  to  be  to  HAUL  on  the 
weather  main-royal-brace."     If  so,  it  is  improbable  he  told  his  uncle  a  different 
story.     The  men  were  hanged  at  sea,  and  so  far  as  they  were  concerned,  it  is 
probable  Mr.  Perry's  first  statement  remained   uncontradicted.     At  all  events,  it 
was  incumbent  on  Captain  Mackenzie  to  explain  this  affair.     Even  giving  him 
the  benefit  of  subsequent  explanations  with  this  young  gentleman,  the  contradic- 
tions in  Mr.  Perry's  account,  should  have  thrown  great  distrust  on  his  statements. 
We  could  wish  to  treat  the  expedients  of  a  mere  boy,  who  was  probably  alarmed 
at  what  had  occurred  under  his  orders,  with  due  lenity,  but  this  does  not  touch 
the  point  as  respects  Captain  Mackenzie  ;  who  owed  it  to  himself  to  explain  why 
he  put  such  a  construction  on  the  conduct  of  Small,  when  he  had  so  much  reason 
for  believing  the  man  merely  obeyed  a  positive  order.     Then  Mr.  Perry  says  he 
really  passed  the  order  for  "  a  small  pull"  on  the  brace,  when,  in  truth,  no  such 
order  had  been  given  to  be  passed.     This  last  fact  must  also  have  been  known  to 
Captain  Mackenzie,  as  Mr.  Hays  swears  his  own  order  was  only  a  repetition  of  one 
received  from  the  commander,  p.  211. 

All  this  Captain  Mackenzie  must  have  known  of  himself,  or  seen  by  the  evi- 
dence before  the  court,  and  yet  he  allows  language  like  this  to  be  incorporated  in 
Mr.  Griffin's  defence  of  himself,  viz.:  "  The  carrying  away  of  the  main-top-gal- 
lant-mast, by  the  sudden  and  violent  jerk  of  the  weather-royal-brace  by  Small, 
who  had  just  left,  the  side  of  Cromwell,  EVIDENTLY  BY  DESIGN,"  &c.,  &c.  It 
may  be  well  to  add  here,  there  is  no  evidence  to  show  that  Cromwell  was  near 
Small,  on  this  occasion,  except  that  of  King,  who  swears  in  detail,  to  a  positive, 
and  somewhat  complicated  order  from  aft,  which  the  officer  aft  [Mr.  Hays]  swears 


OF  THE  NAVAL  COURT  MARTIAL.  341 

as  positively  he  did  not  give.  Two  boys  also  swear  Cromwell  was  not  there;  one 
saying  he  saw  him,  at  the  time,  in  another  place.  But  the  point  here,  is  to  rec- 
oncile Captain  Mackenzie's  course  in  connexion  with  this  matter,  to  Mr.  O.  H. 
Perry's  statement  to  himself.  One  thing  would  seem  to  be  certain  ;  the  accounts 
of  the  orders  on  this  occasion,  are  so  contradictory,  as  not  to  justify  any  man  in 
affirming  that  Small  acted  with  a  design. 

We  are  aware  our  law  will  be  called  in  question  on  two  points,  viz. :  On  the 
subject  of  the  virtue  of  what  may  be  called  ex  post  facto  evidence,  in  vindicating 
the  acts  of  a  man;  and,  on  the  right  of  a  man-of-war,  to  exercise  jurisdiction  over 
her  own  crew,  in  a  foreign  territory. 

As  respects  the  first,  we  will  put  a  case.  A  and  B  quarrel  and  separate.  A 
gets  a  dagger,  and  distinctly  declares  an  intention  to  stab  B,  on  the  first  favora- 
ble occasion,  in  order  to  resent  injuries  already  received.  B  provides  himself  with 
a  pistol,  and  makes  a  similar  declaration,  but  under  circumstances  to  render  its 
communication  to  A  impossible.  The  parties  then  meet ;  B  approaching  A, 
professing  a  readiness  to  apologise  for  what  had  passed,  looking  amiable,  and 
giving  no  grounds  for  apprehension  by  his  conduct.  A,  in  execution  of  his  original 
design,  stabs  B,  and  kills  him.  The  fact  of  B's  private  intentions  comes  out  on 
trial,  making  it  evident  that  if  A  had  not  killed  B,  the  latter  would  have  killed  A. 
Now,  would  this  make  the  act  of  A  self-defence  ? 

Malice  is  an  ingredient  in  all  crime.  As  God  alone  can  read  the  heart,  the 
law  wisely  infers  malice  in  certain  states  of  the  facts.  But,  when  the  party  him- 
self avows  malice,  and  his  acts  corroborate  the  truth  of  his  declarations,  will  it 
avail  him  that  another  is  as  wicked  and  as  lawless  as  himself? 

We  know  that  this  ex  post  facto  evidence  ought  to  be  received  so  far  as  it  goes 
to  corroborate  previous  evidence,  though  with  great  discretion  even  in  such  in- 
stances;  but  we  think  it  ought  not  ever  be  received,  as  substantive  proof.  The 
last  is  all  we  contend  for. 

As  respects  the  national  jurisdiction,  we  think  we  have  not  been  understood. 
We  use  it  only  by  way  of  illustration,  in  order  to  show  the  dilemma  to  which 
Captain  Mackenzie  might  be  reduced  by  laying  down  the  position,  he  would  not  ask 
succor  from  any  foreign  power.  Our  ground  is  that  he  would  have  been  obliged 
to  go  to  sea  to  hang  his  prisoners,  inasmuch  as  he  could  not  legally  have  executed 
them  in  a  foreign  port.  This  is  denied  by  one  of  those  who  have  seen  our 
sheets,  as  being  opposed  to  international  law. 

We  very  well  know  that  national  law  prevails  on  board  a  ship-of-war  in  a  foreign 
port;  but  certainly  not  without  limitations.  It  is  a  maxim  of  all  municipal  law 
that  every  man  must  exercise  his  own  legal  rights,  in  a  way  not  to  infringe  those 
of  other  persons.  The  comity  of  nations  renders  this  principle  rigorously  binding 
in  all  cases  of  international  rights.  The  laws  of  New  York,  for  instance,  forbid 
public  executions,  as  opposed  to  the  public  good,  and  as  offensive  to  proper  feel- 
ing. We  should  conceive  it  to  be  a  gross  violation  of  the  comity  of  nation*,  for 
an  English  or  French  ship-of-war  to  execute  men  off  the  Battery,  in  the  ordinary 
course  of  her  legal  discipline  and  judgments.  Such  an  act  would  need  grave 
explanations,  and  would  only  be  justified  on  the  plea  of  necessity.  But  Captain 
Mackenzie's  case  would  have  been  far  worse.  No  man  can  believe  we  should 
tolerate  the  conduct  of  the  commander  of  an  English  brig,  who  should  hang  three 
men  at  his  yard-arm,  without  a  trial,  because  he  could  not  submit  so  far  to  humili- 
ation, as  to  ask  the  authorities  of  the  place  to  extend  to  him  the  usual  protection 
of  their  jurisdiction.  The  whole  country  would  receive  such  an  excuse  as  an 


342  REVIEW  OF  THE  PROCEEDINGS 

insult  to  aggravate  the  original  wrong.  We  conceive  that  a  vessel-of-war  has  no 
more  right  than  an  individual  to  resort  to  the  law  of  nature,  in  a  foreign  port, 
until  all  legal  means  have  failed;  and,  whatever  may  be  her  privileges  in  other 
matters,  it  is  certainly  as  much  within  the  legal  powers  of  the  local  authorities  of 
New  York  to  suppress  violence  on  board  a  ship-of-war,  as  it  would  be  to  prevent 
two  belligerants  from  fighting  a  battle  in  the  port.  It  will  scarcely  be  contended 
that  the  local  authorities  have  not  a  legal  right  to  prevent  the  crew  of  a  foreign 
ship-of-war  from  cutting  each  other's  throats. 

To  conclude  :  we  conceive  that  he  who  would  come  at  the  merits  of  the  Som- 
ers  mutiny,  as  they  are  connected  with  the  facts  shown  by  this  record,  must  bear 
in  mind  the  following  leading  circumstances,  viz.  :  That  the  affair  of  the  mast 
was  the  occurrence  which  directly  awakened  the  feeling  that  produced  the  execu- 
tions; that  there  is  more  reason  for  believing  that  Small  obeyed  an  order  in  ha.nl- 
ing  on  the  brace,  than  that  he  did  not,  and  that  Captain  Mackenzie  had  virtually 
been  given  to  understand  as  much,  on  the  27th  November;  that  the  question  of 
executing  Mr.  Spencer,  Cromwell,  and  Small,  provided  more  prisoners  were  made, 
arose  as  early  as  the  28th ;  that  Captain  Mackenzie  wrote  his  letter  convoking  a  coun- 
cil on  the  morning  of  the  30th ;  that  after  writing  this  letter,  M'Kinley,  Wilson, 
M'Kee,  and  Green,  were  arrested  ;  that  the  four  last  named  were  brought  into 
port  as  prisoners,  some  of  whom  Captain  Mackenzie  affirmed  in  his  report  were 
KNOWN  to  be  guilty,  were  several  weeks  in  confinement,  most  of  them  in  irons,  no 
charges  being  ever  brought  against  one  of  them  all ;  that  Cromwell  was  never 
questioned  as  to  his  guilt,  except  by  a  few  remarks  made  when  first  confined,  and 
was  never  asked  to  explain  any  of  the  circumstances  which  formed  the  justifica- 
tion of  his  execution,  though  in  irons  on  the  quarter  deck  of  the  brig,  nearly  four 
days  before  he  was  hanged,  and  quite  three  after  the  question  of  his  death  was 
first  agitated;  that  most  of  the  evidence  by  which  the  execution  of  this  man  has 
ibeen  attempted  to  be  justified  before  the  court,  has  been  first  revealed  by  the 
.-several  witnesses,  since  the  vessel  arrived,  in  port ;  that  Captain  Mackenzie  does 
not  appear  to  have  inquired  into  the  facts  personally,  short  conversations  at  the  time 
of  the  arrest  excepted,  until  after  his  decision  to  hang  the  man,  and  then  only  by 
taking  through  Mr.  Ganscvoort  the  opinions  of  the  petty  officers  concerning  Crom- 
well;  that  he  made  out  his  station  bill  for  the  executions  on  the  night  of  the 
30th,  some  twelve  or  fifteen  hours  before  the  report  of  the  council  was  read  to  him, 
and  consequently  all  the  evidence  given  before  that  council,  such  as  it  was,  had 
been  received ;  that  no  overt  act  of  mutiny  had  been  committed ;  that  the 
prisoners,  in  every  instance,  submitted  to  be  put  in  irons  without  the  smallest  show 
of  resistance,  the  crew  looking  quietly  on;  that  at  the  executions  there. was  no 
resistance  5  and  that  a  man,  supposed  by  Captain  Mackenzie  to  be  seriously  im- 
plicated, and  one  of  those  he  arrested  after  reaching  port,  was  flogged  at  the  gang- 
way, as  late  as  the  29th,  nothing  unusual  occurring,  even  in  appearance,  at  his 
punishment.  It  is  all  important  to  remember  that  if  any  mutinous  conduct  among 
the  crew,  such  as  to  justify  the  executions,  actually  existed,  it  is  susceptible  of  be- 
ing proved,  and  that  in  neglecting  to  punish  offenders  for  conduct  which  induced 
consequences  so  serious,  Captain  Mackenzie  tacitly  admits  he  can  not  prove  it, 
or  he  grossly  neglects  doing  his  duty. 

As  relates  to  the  evidence,  we  would  point  out  to  the  reader  the  explanations 
concerning  the  battle-axes ;  the  two  rushes  aft,  on  neither  of  which  occasions 
was  anything  like  a  rescue  attempted ;  the  affair  of  the  knife,  a  dagger,  which 
Captain  Mackenzie  in  his  report  speaks  of  as  "  only  fit  to  kill,"  but  which  the  purser 


OF  THE  NAVAL  COURT  MARTIAL.  343 

bought  and  presented  it  to  his  cot-boy,  a  difference  of  sentiment  that  goes  to 
show  the  value  of  some  of  the  opinions  given  ;  the  contradictions,  and  positive- 
ness  under  contradictions,  of  most  of  the  boys  who  testify  about  the  papers,  as 
well  as  the  almost  moral  certainty  that,  under  the  circumstances,  these  boys  could 
not  have  recognised  the  Greek  papers,  so  as  to  swear  to  them,  had  they  been  even 
the  papers  they  saw  in  the  hands  of  Mr.  Spencer;  the  reasons  there  are  for  sup- 
posing that  these  papers  were  constantly  undergoing  alterations ;  and  the  great 
probability  there  is  that  the  only  crosses  which  appear  on  the  Greek  papers,  were 
put  there  very  shortly  before  Mr.  Spencer's  arrest;  the  value  of  Tyson's  testimony, 
as  contradicted  by  Seal's,  and  as  shown  on  his  own  cross-examination ;  the  testi- 
mony of  Anderson  in  particular,  a  witness  without  exaggeration,  and  one  who 
evidently  wished  to  tell  the  truth;  the  manner,  persons,  times,  and  places,  when, 
where,  and  how,  and  to  whom,  most  of  the  boys  first  revealed  the  facts  they  relate ; 
the  confident  manner  in  which  many  of  the  witnesses  speak  of  appearances 
and  circumstances  concerning  which  there  is  a  moral  assurance  there  ought  to  be 
at  least  doubts ;  the  after-thoughts  that  pervade  so  much  of  the  testimony  ;  the 
exaggerations  of  opinion  that  are  to  be  found  it  it;  the  whole  evidence  of  King, 
the  gunner's  mate,  and  the  confidence  and  particularity  with  which  he  swears  to 
an  order  about  the  main  royal  brace,  when  clearly  no  such  order  was  ever  given ; 
the  motive  owned  by  Mr.  Gansevoort,  for  questioning  Small  concerning  Crom- 
well and  Mr.  Spencer  touching  himself,  after  the  council  assembled  ;  the  discrep- 
ancies that  exist  between  Captain  Mackenzie's  report,  and  various  points  in  the 
evidence  ;  the  confident  absurdities  that  are  hazarded  by  many  of  the  witnesses 
as  connected  with  their  own  powers  to  interpret  looks,  signs  and  expressions  of 
the  human  countenance,  as  well  as  the  general  disposition  which  exists  to  prove 
too  much;  the  points  on  which  the  witnesses  say  they  do  riot  remember,  as  oppos- 
ed to  the  points  on  which  their  memories  are  minutely  accurate. 

Most  persons  who  condemn  the  course  of  Captain  Mackenzie  and  his  officers 
attribute  it  to  fear.  This  solution  of  the  difficulty  is  so  natural,  as  to  be  the  first 
to  suggest  itself.  Such,  however,  is  not  our  opinion.  In  the  first  place,  we  do 
not  believe  there  was  anything  of  which  a  man  accustomed  to  sailors  and  ships, 
would  have  been  seriously  afraid.  Then  we  think,  the  conduct  and  opinions  of  the 
officers  generally,  were  not  those  of  alarm ;  as  for  instance,  in  the  dilatory  pro- 
ceedings of  the  council,  which  were  hardly  reconcilable  with  prudence,  under  the 
circumstances  of  danger  and  jeopardy  it  is  attempted  to  set  up.  But  we  doubt 
if  men  frightened  would  have  dared  to  meet  the  crisis,  as  it  was  certainly  here 
met,  admitting  that  the  danger  existed  ;  and  least  of  all  do  we  believe  the  puerile 
theory  of  the  disgrace  of  going  into  the  nearest  foreign  port,  would  have  resisted 
a  moment  against  the  attacks  of  fear.  The  reader  will  remember  we  distinguish 
between  the  exaggeration  of  danger,  and  the  unmanly  dread  of  meeting  it.  We 
suppose  the  tendency  of  the  commander  to  regard  one  side  of  a  question,  sud- 
denly took  the  direction  of  magnifying  this  mutiny.  We  think  it  evident  Mr. 
Gansevoort  had  a  strong  disposition  that  way  from  trie  first.  We  believe  the 
opinions  of  the  two  to  have  influenced  all  the  rest  of  the  quarter-deck.  Under 
these  opinions  occurred  the  "scenes"  of  which  we  have  spoken,  when  the  previous 
impressions  gathered  intensity  from  the  necessity  of  the  case,  and  the  executions 
followed. 

Many  imagine  that  Captain  Mackenzie's  report  betrays  the  evidence  of  a  dis- 
position to  glean  personal  renown,  from  the  manner  in  which  it  is  pretended  he 
saved  his  own  life  and  those  of  his  associates.  The  feebleness  of  this  extraordi- 
'tiary  document  renders  its  writer  obnoxious  to  very  injurious  suspicions  certainly, 


344  REVIEW  OF  THE  PROCEEDINGS. 

and  this  among  the  number;  but  the  mental  obliquity,  so  very  obvious  throughout 
the  whole  affair,  renders  any  ordinary  analysis  of  human  motives  exceedingly 
precarious.  God  alone  can  say  how  far  any  selfish  feeling  was  mixed  up  with 
the  mistakes  of  this  terrible  transaction.  The  act  was.  unquestionably,  one  of 
high  moral  courage,  one  of  the  basest  cowardice,  one  of  deep  guilt,  or  one  of 
lamentable  deficiency  of  judgment. 


NOTE. 

Since  this  review  has  been  in  type,  our  attention  has  been  drawn  to  certain 
detached  passages  in  the  opinions  of  the  judge  advocate,  which  go  to  show  that 
that  gentleman  holds  the  same  opinion  we  do  ourselves  on  the  subject  of  the 
nature  of  the  appearances  that  would  justify  Captain  Mackenzie's  course. 

At  pages  2SS  and  2S3,  the  names  of  Anderson  and  Browning  are  confounded 
together  in  a  way  that  may  mislead  the  reader.  This  has  arisen  from  the  fact 
that  a  portion  of  the  record  had  not  reached  us,  and  we  followed  newspaper 
reports — always  unsafe  guides — for  a  small  portion  of  the  testimony.  The  name 
should  read  Anderson,  throughout,  and  this  man  was  a  captain  of  the  fore- 
castle, and  not  a  boatswain's  mate.  There  is,  however,  some  reason  for  believ- 
ing that  Browning,  the  boatswain's  mate,  was  also  aloft  when  the  mast  was  carried 
away,  though  we  can  not  at  the  moment  lay  our  hand  on  the  evidence. 

The  point  is  simply  to  show  that  confessedly  innocent  men  were  aloft,  and  that 
the  officers  ought  to  have  foreseen  this,  as  well  as  the  strong  improbability  that 
the  conspirators  would  choose  a  place  so  liable  to  interruptions  of  this  nature,  to 
plot  in. 


THE  END. 


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AND    ITS    ENDEMIC    INFLUENCES; 

Based  chiefly  on  the  Records  of  the  Medical  Department  and  Adjutant  General's  Office, 

United  States  Army.     By  SAMUEL  FORRY,  M.D.     Price  $2  50,  muslin. 

"  The  highest  praise  that  we  can  award  to  this  great  labour— for  so  it  may  be  truly  designated— i«,  that  th« 

older  country,  with  all  its  industrious  intelligence,  has  nothing  of  the  kind  :  most  of  the  contribution*  in  local 

medical  topoo-raphy  that  adorn  the  pages  of  the  Transactions  of  the  Provincial  Medical  Association  tnU  not 

bear  comparison ;  and  it  reflects  altogether  the  highest  credit  on  the  medical  literature  of  the  United  State*.  — 

"  It  is  with^ particular  pleasure  that  we  hail  the  treatise  before  us,  a  pleasure  which  we  are  sure  will  be  re- 
ciprocated at  large  by  our  medical  brethren."— Xmer.  Jour,  of  Med.  Sciences. 


HENRY  G.  LANGLEY'S  PUBLICATIONS. 


"  A  volume  of  highly  interesting  facts.  It  is  creditable  to  the  medical  science  of  the  United  States."— 
London  Athenteum. 

"  This  is  a  sensible  and  useful  work  upon  a  subject  of  much  importance  and  daily  increasing  interest." — 
Dublin  Journal  of  Med.  Science. 

1  The  present  work  of  Dr.  Forry  comes  out  under  peculiarly  imposing  auspices.    This  is  just  such  a  volume 
-     '     want  of."— Beir*  Select  Med.  Library. 

ionably  one  of  the  most  interesting  productions  that  have  appeared  on  this  in- 
American  Med.  Intelligencer. 

DR.  FORRY'S  NEW  WORK. 

THE  LAW  OF  POPULATION  AND  MORTALITY  IN  THE  UNITED  STATES. 

BASED    UPON   THE    SIX   CENSUSES    AND   OTHER    DATA; 

With  a  condensed  View  of  General  Hygiene  or  State  Medicine,  in  its  relations  to  Vital  Sta. 

tistics,  as  regards  the  promotion  of  Human  Longevity  and  Happiness.     By  SAMUEL  FORRY, 

M.D.,  author  of  "  The  Climate  of  the  United  States,"  Editor  of  "  The  New- York  Journal 

of  Medicine,"  etc. 

The  above  production  is  based  upon  an  extended  paper,  read  by  Dr.  Forry  before  the  New-York  Historical 
Society  ;  and  at  the  suggestion  of  the  leading  members  of  which,  he  has  been  induced  to  expand  the  highly 
interesting  subject  into  a  volume. 

1  vol.  12mo.    Price  $1  00. 

COMMERCE  OF  THE  PRAIRIES, 

Or  the  Journal  of  a  Santa  Fe  Trader  ;  being  personal  observations  of  a  Trader, 
made  on  eight  several  expeditions  across  the  Great  Western  Prairies,  and  during  an  almost 
uninterrupted  residence  of  nine  years  in  Northern  Mexico.  Embracing  some  account  of 
the  Natural  History  of  those  Prairies,  and  many  new  particulars  of  the  Frontier  Indians — 
of  the  Wild  Tribes  of  the  Plains — and  of  the  New  Mexican  Indians  of  the  North  :  and 
also  Historical  Sketches  of  the  Past  and  Present  Condition  of  New  Mexico.  Its  inhabit- 
ants, their  manners,  customs  and  superstitions  :  to  which  is  prefixed  a  brief  Narrative  of 
the  Origin  and  Vicissitudes  of  the  United  States  and  Santa  Fe  Trade.  Illustrated  with 
numerous  engravings.  By  JOSIAH  GREGG,  2  vols.  12mo.  Price  $2  50. 

MR.  C.  EDWARDS  LESTER'S  NEW  WORK 

In  two  vols.  I2mo.  beautifully  printed  and  embellished  by  finely-engraved  plates  from  de- 
signs of  CHAPMAN. 

THE   CONDITION    AND    FATE    OF    ENGLAND. 

BY  THE  AUTHOR  OF  "  THE  GLORY  AND  SHAME  OF  ENGLAND." 

Price  fjl  75. 

The  above  new  work  is  designed  as  a  continuation  and  summing  up  of  the  arguments  com- 
prised  in  the  author's  former  volumes,  "  The  Glory  and  Shame  of  England;"  it  presents  a 
graphic  picture  of  the  actual  condition  of  the  English  people,  deduced  from  statistical 
documents  of  unimpeachable  authority  ; — developing  scenes  of  terrific  and  startling  interest 
descriptive  of  the  appalling  distress  of  the  British  manufacturing  classes,  including  notices 
of  the  present  portentous  aspect  of  affairs  in  that  country. 
The  following  is  a  synopsis  of  the  topics  comprised  in  these  interesting  volumes  : — 

BOOK  I.  Embraces  a  view  of  the  power  and  magnificence  of  the  British  Empire,  with  illustrations  of  the 
spirit  of  the  feudal  and  of  the  modern  age. 

BOOK  IT.  The  general  condition  of  the  mass  of  the  British  people  in  past  ages, — their  burdens  and.  sufferings 
during  centuries  of  unrelieved  oppression. 

BOOK  III.  The  injustice,  wrongs,  and  oppressive  laws  under  which  the  majority  of  the  British  people  are  now 
struggling. 

BOOK  IV.  A  continuation  of  the  same  subject,  including  a  Reply  to  a  recent  publication,  entitled  "  The 
Fame  and  Glory  of  England  Vindicated,"  by  an  anonymous  libeller  of  the  Democratic  Institutions  of  this  coun- 
try, written  over  the  signature  of  "  Libertas." 
BOOK  V.  The  sufferings  and  crime,  the  ignorance  and  degradation  caused  by  the  oppressive  burdens  of  the 

BoeK  VI.  Glances  at  the  woes  and  struggles  of  Ireland  under  the  tyrannical  power  of  England,  and  htr 
only  hope  of  relief. 

BOOK  VII.  The  feelings  of  the  people  under  a  sense  of  the  deep  injustice  they  hare  so  long  endured,  and 
their  determination  to  suffer  the  slavery  no  longer. 

BOOK  VIII.  The  opposition  of  the  Aristocracy  to  the  Liberties  of  the  People,  and  their  determination  still  to 
Veep  them  in  subjection. 

BOOK  IX.  The  progress  of  the  Democratic  principle  throughout  the  world,  and  especially  in  Great  Britain. 

BOOK  X.  The  final  issue  of  this  conflict — Reform  or  Revolution. 

COMPLETE  HISTORY  OF  LITERATURE, 

In  one  vol.  12mo.    Fifth  Edition. 

IECTURES  ON  THE  HISTORY  OF  LITERATURE, 

BY  FREDERIC  VON  SCHLEGEL.    TRANSLATED  BY  J.  G.  LOCKHART. 
WITH  A  SERIES   OF  QUESTIONS   FOR   SCHOOLS,   BY   PROF.   FROST. 

Price  $1  25,  muslin. 


8,  ASTOR  HOUSE,  NEW- YORK. 


41  By  far  the  most  rational  and  profound  view  of  the  History  of  Literature  which  has  yet  been  presented."— 
Klackwood. 

"  One  of  the  most  valuable  works  that  ever  adorned  a  library."  —  Herald. 

"  This  work  is  destined  to  universal  popularity  :  its  beneficial  influence  will  be  co-eval  with  the  existence 
of  literature  and  civilization."  —  Literary  Gazette. 

"  Schlegel,  standing  as  it  were  upon  the  Alp  of  time,  sketched  with  an  artist  hand  the  glorious  literary 
panorama  lying  beneath  the  horizon  of  the  past.  With  the  intuitive  perception  of  genius,  he  unfolds  to  us  the 
mechanism  of  each  system  of  ancient  philosophy  that  spent  its  ephemeral  breath  in  struggling  for  a  supremacy, 
which,  if  temporarily  attained,  was  early  lost  from  the  want  of  an  innate,  self-sustaining,  vital  principle.  The 
occult  sciences,  poetry,  languages,  exploded  sophisms,  <tc.  are  presented  to  the  eager  eye  in  groups  wrought 
with  the  same  vivid,  life-like  portraiture,  with  here  and  there—  like  the  air  amid  the  moet  complex  sounds  in 
music—  an  acute  critical  aphorism  interspersed  ;  so  fascinating  in  its  keen  subtlety  that  we  are  lost  in  admira- 
tion." —  Louisville  Journal. 

THE    POETICAL    WORKS    OF    PRAED. 

LILLIAN,   AND   OTHER   POEMS, 

FANCIFUL    AND    FACETIOUS. 
By   WILLIAM    MACKWORTH    PRAED. 

First  Collected  edition.     Edited  by  R.  W.  GRISWOLD,  1  vol.  12mo.,  muslin.     $1  25. 
"  Praed  was  the  Poet  of  Society,  '  a  fellow  of  infinite  humour,'  and  in  scholarship  and  art,  surpassed  by 
none  of  the  English  poets  of  the  age.     Though  many  of  his  pieces  have  been  almost  universally  read  in  this 
country,  they  have  never  yet  been  printed  collectively,  either  here  or  in  England."  —  Democratic  Review. 

ELIZA    COOK'S     POEMS. 

In  one  beautifully-printed  volume, 
MELAIA,    AND    OTHER    POEMS, 

By  ELIZA  COOK. 

Richly  embellished  with  twelve  finely-executed  English  Engravings  —  Copies  in 
morocco  super.  S3  50,  cloth  gilt,  $2  50. 

"  This  is  a  beautiful  volume,  splendidly  bound,  still  more  elegantly  illustrated,  and  combining  some  of  the 
choicest  poems  in  the  language.  The  '  The  Old  Arm  Chair,'  is  one  of  her  most  popular  poems,  and  has 
touched  the  hearts  of  thousands  who  never  knew  even  the  name  of  the  author.  She  writes  for  the  heart,  and 
her  beautiful  songs  always  reach  it.  The  book  contains  twelve  beautiful  English  engravings,  and  forms  one 
of  the  most  elegant  holiday  presents  yet  offered  "—  Cour.  4-  Enq. 

u  We  know  of  no  other  living  writer  of  verse,  whose  productions  have  been  so  generally  linked  with  the 
magic  of  the  sister  muse,  and  a  great  portion  of  the  present  collection,  whic.h  includes  numerous  new  and  very 
pleasing  pieces,  will  doubtless  be  yet  laid  under  similar  contribution  by  our  musical  composers.  For  our  own 
nart  we  give  unqualified  preference  for  this  elegant  volume—  for  elegant  it  assuredly  is  as  to  its  embellish- 
ments printing,  and  costly  exterior—  to  any  of  the  boasted  Annuals  we  have  seen."—  Democratie  Rcvicio. 

"  This  beautiful  volume  may  be  styled,  as  we  observe  it  has  been  already  by  some,  the  Gem  of  the  Season. 
It  equals  the  best  efforts  of  our  emulative  and  enterprising  publishers  ;  and,  whether  we  consider  the  exquisite 
finish  of  its  embellishments,  its  elegance  of  typography,  or  its  very  chaste  ornamental  binding,  it  fully  sustains 
our  assertion."—  Merchants'  Magazine. 


MRS.   ELLIS'S   POPULAR   WORKS, 

Over   80,000   volumes   sold!! 

Now  ready,  in  8vo.  price  25  cents. 
THE    MOTHERS    OF    ENGLAND, 

THEIR   DUTIES,    RESPONSIBILITIES    AND    DOMESTIC    INFLUENCE. 

«  An  «.™>llent  oractical  work  ;  there  is  no  straining  after  fine  writing,  no  sacrificing  truth  to  effect  ;  but 
what?*  far  bVt£r?  he  writer  has  discharged  her  duty  with  diligence  and  faithfulness,  see  king  as  she  tel  »  », 
Anoint  out  to  her  Countrywomen  the  means  of  'winning  back  to  the  homes  of  England,'  the  boasted  felicity 
for  which  they  were  once  so  justly  &me<l.''-Chr,stian  Examiner. 

II. 

THE    WIVES    OF    ENGLAND, 

THEIR   RELATIVE    DUTIES,    DOMESTIC    INFLUENCES,    AND    SOCIAL    OBLIGATIONS. 

Price  25  cents. 


tribute  of  our  admiration.''- 


III. 

THE  DAUGHTERS  OF  ENGLAND, 

THEIR    POSITION    IN    SOCIETY.    CHARACTER,    AND    RESPONSIBILITIES. 

I'rice  25  cents. 


—  —  .  -  —  —  .ft 

6  HENRYG.    LANGLEY'S    PUBLICATIONS. 

"  We  have  perused  this  honest  and  searching  work  with  much  satisfaction,  and  can  confidently  recommend 
it  to  ey»ry  mother  who  wishes  her  daughters  to  become  really  useful  members  of  society  ;  and  to  every  young 
female  who  has  the  wisdom  to  prefer  esteem  to  admiration."  —  Christian  Adv. 

IV. 
THE    WOMEN    OF    ENGLAND, 

THEIR    SOCIAL     DUTIES     AND    DOMESTIC     HABITS. 

Price  25  cents. 

"  We  know  no  volume  better  calculated  to  exercise  a  powerful,  lasting,  and  beneficial  influence.  If  we 
could  have  our  o-.vu  way,  every  family  should  order  a  copy  of  '  The  Women  of  England.  Husbands,  tspc- 
dally  young  Husbands,  should  buy  it  for  their  Wives  ;  Fathers,  for  their  Daughters  ;  Brothers,  for  their  Sis- 
ters."— Methodist  Magazine. 

V. 
THE   POETRY    OF    LIFE, 

In  one  volume,  8vo.,  250  pages.    Price  37|  cents. 

VI. 
A    VOICE    FROM    THE    VINTAGE, 

OR,    FORCE    OF   EXAMPLE  :    ADDRESSED   TO   THOSE    WHO   THINK   AND    FEEL. 

Price  12|  cents. 

"  We  do  not  hesitate  to  pronounce  this  one  of  the  best  as  well  as  one  of  the  most  useful,  of  Mrs.  Ellis's  high- 
ly popular  works.  Whatever  she  attempts  is  accomplished  in  a  clear,  vigorous  and  masterly  manner  —  grap- 

p of  mind  truly  astonishing  to  all,  more  especially  to  th 
attributes  of  the  sterner  sex  only."—  Washingtonian. 


. 

pling  her  subject  with  a  strength  and  grasp  of  mind  truly  astonishing  to  all,  more  especially  to  those  who  argue 
that  depth  of  thought  and  wisdom  are  the  attribute 


VII. 
PICTURES    OF    PRIVATE    LIFE, 

FIRST     AND     SECOND     SERIES. 

Price  25  cents  each. 

"  This,  we  believe,  was  Mrs.  Ellis's  first  work,  and  in  some  respects  it  is  her  best.  It  is  a  simple,  truthful  and 
touching  delineation  of  the  joys  and  sorrows,  temptations,  duties,  and  blessings  of  private  domestic  life,  for 
the  purpose  of  imparting  useful  instruction,  and  sound  advice.  The  fiction  is  wrought  with  great  interest  and 
power,  but  is  always  subordinate  to  a  high  moral  design,  and  is  only  assumed  as  a  pleasing  medium  for  the 
utterance  of  truths  which  would  lose  much  of  their  impressive  ness  if  proclaimed  in  a  didactic  form.  There 
are  few  writers  to  whom  a  more  cordial  commendation  can  be  given,  by  those  who  regard  the  interests  of  mo- 
rality and  religion,  as  well  as  the  attractions  of  style  and  beauty  of  sentiment,  than  Mrs.  Ellis."  —  Evangelitt. 

VIII. 
SUMMER   AND   WINTER   IN   THE    FRENCH   PYRENEES. 

By  the  author  of  "  The  Women  of  England."    Daughters  of  England,  &c. 

1  vol.  8vo.  price  25  cts. 

(<  The  work  is  full  of  interest."  —  "  A  delightful  book."  —  "  A  most  charming  book  ••  a  mass  of  information."  — 
"  Virid,  graphic,  forcible,  and  fervid."  —  "  Displays  no  ordinary  faculties  of  observation."  —  "  Read  it  through  .  . 
like  it  much  .  .  cordially  recommend  it."  —  "  Strongly  recommend  it."  —  From  various  Magazines  and  Newt- 

IX. 

MRS,   ELLIS'S  POETICAL  WORKS, 

Beautifully  printed  in  duodecimo,  with  a  finely-engraved  PORTRAIT  OF  THI  AUTHOR. 

THE     IRISH     GIRL: 

AND    OTHER    POEMS, 

By  MRS.  ELLIS. 
Editions  in  muslin  gilt,  $1  25,  and  morocco  extra,  $2  25. 

X. 

A  FAMILY  TREASURE. 

In  one  beautiful  volume  8vo.,  cloth  gilt. 

THE    DOMESTIC   GUIDES   OF  MRS.    ELLIS, 

CONTAINING 

THE  MOTHERS  OF  ENGLAND. 
THE  WIVES  OF  ENGLAND. 
THE  DAUGHTERS  OF  ENGLAND. 
THE  WOMEN  OF  ENGLAND. 


8,    ASTOR    HOUSE,    NEW-YORK. 


"  To  wish  prosperity  to  such  a  book  as  this,  is  to  desire  the  moral  and  physical  welfare  of  the  human  spe- 
cies."— Bath  Chronicle. 

"  The  unexampled  success  attending  the  works  of  this  gifted  writer  in  behalf  of  the  moral  elevation  of  her 
sex,  has  placed  her  at  once  at  the  head  of  the  female  authors  of  any  country.  The  gentle  and  benign  spirit, 
which  is  diffused  through  her  various  productions,  awakens  a  ready  response  of  the  heart  to  integrity  and 
faithfulness.  She  appears  as  a  sort  of  universal  mother  of  her  sex,  counselling  and  warning  her  children  upon 
subjects  that  most  intimately  affect  their  weal  or  wo  ;  and  this  she  does  with  the  deep  fondness  of  a  Niobe, 
yet  with  the  stern  inflexibility  of  a  Minerva.  Her  writings  exhibit  throughout  the  keenest  perception  and  ac- 
curacy of  discrimination,  coupled  with  sobriety  of  judgment,  delicacy  of  sentiment,  warmth  of  feeling,  and 
nicety  of  adaptation  ;  and  above  all,  a  sweet  Christian  charity  pervades  every  page. 

"  Amiable  and  holy  ar«  these  lessons,  calculated  to  elevate  and  purify  the  young  hearts  into  which  they 
may  be  received,  and  to  carry  those  best  blessings  of  love  and  peace  into  many  a  family.  Its  purity,  ita  mo- 
rality, its  integrity,  are  all  unblemished  ;  it  should  be  found  in  every  family  and  carefully  studied." — Metro- 
politan. 

THE  SELECT  WORKS  OF  MRS.  ELLIS. 

t  "  We  have  perused  this  honest  and  searching  work  with  much  satisfaction,  and  can  confidently  recommend 
it  to  every  mother  who  wishes  her  daughters  to  become  really  useful  members  of  society  ;  and  to  every  young 
female  who  has  the  wisdom  to  prefer  esteem  to  admiration." — Christian  Advocate. 

"  Mrs.  Ellis  is  not  a  stern  moralist  who  frightens  with  her  severity,  but  a  winning  instructress  to  whom  it 
is  sweet  to  listen  ;  and  though  the  volume  before  us  is  avowedly  one  of  teaching,  it  will  be  read  with  plea- 
sure, recommended  by  its  taste,  its  sentiment,  and  its  refinement,  even  by  those  whom  it  may  reprove  ;  and 
this  we  think  is  saying  much,  for  censure  is  seldom  acceptable,  and  it  is  a  rare  thing  for  the  medicine  which 
gives  health  to  give  pleasure  too." — Metropolitan. 

A  NEW  JUVENILE  BY  MRS.  ELLIS, 

In  one  volume,  18mo. 

BROTHER    AND    SISTERS ; 
AND  OTHER  SKETCHE  AND  TALES, 

By  MRS    ELLIS. 

Author  of  the  '  Mothers,'  *  Wives,'  '  Women,'  and  *  Daughters  of  England,'  &c.  &c. 

Price  50  cents. 

POPULAR   HAND-BOOKS, 

Elegantly  bound  in  muslin,  gilt  edges,  and  ornamental  stamps, 
Price,  25  cents  each,  or  $1  50  for  the  Series. 

I. 
HAND-BOOK    OF    DREAMS: 

Their  Origin,  History,  and  Interpretations. 

"  Even  the  remembrance  of  our  dreamings  will  teach  us  some  truths."—  Watts. 

II. 

HAND-BOOK    OF    DOMESTIC    COOKERY: 

Containing  directions  for  preparing  upward  of  four  hundred  dishes. 

HAND-BOOK    OF    LETTER- WRITING   FOR    GENTLEMEN: 

Containing  original  letters  relating  to  Business,  Duty,  Friendship,  &c. 

IV. 
HAND-BOOK   OF    LETTER-WRITING    FOR    LADIES : 

Containing  original  letters  on  Friendship,  Love,  Marriage,  &c. 

HAND-BOOK  OF  THE  LANGUAGE*AND  SENTIMENT  OF  FLOWERS: 

Containing  the  name  of  every  Flower  to  which  a  sentiment  has  been  assigned. 

VI. 
HAND-BOOK    OF    MANNERS: 

With  Rules  for  the  Regulation  of  Conduct : 
"  The  history  of  manners,  the  history  of  common  life."— Dr.  Johnson. 

ONE  HUNDRED  GLEES  FOR  81. 

THE   NEW-YORK   GLEE   BOOK, 

Containing  one  Hundred  Glees,  Quartetts,  Trios,  Songs  in  Parts,  Rounds  and  Catches; 
composed,  selected,  and  harmonized  with  an  ad  libitum  Accompaniment  for  the  P 
forte.     1  vol.  8vo.  paper  $1,  bound  in  cloth,  $  1  2.). 
By  GKORGE  LODER. 


HENRY  G.  LANGLEY'S  PUBLICATIONS. 


becoming  more  so,  the  appearance  of  this  volume  is  timely :  it  supplies  a  want  that  has  been  much  felt." — 
Commercial  Advertiser. 

"  The  work  embraces  more  than  a  hundred  of  the  most  choice  and  popular  pieces  of  music,  and  possesses  a 
high  value.  It  is  neatly  printed  in  a  convenient  form."— Evening  Post. 

"  We  hail  the  appearance  of  this  work  with  great  pleasure  This  volume  is  one  of  the  most  desirable  books 
in  the  world  for  a  family  of  brothers  and  sisters,  and  even  parents  who  are  fond  of  family  singing  ;  and  we 
cannot  conceive  of  a  more  delightful  sight  than  the  use  of  it  around  the  domestic  fireside.  We  recommend  it 
with  great  satisfaction." — Herald. 

"  We  do  not  hesitate  to  say  that  in  publishing  the  work  to  which  we  here  allude,  Mr.  Loder  has  become  a 
public  benefactor  !  and  we  will  endeavour  to  prove  it.  Of  all  the  amusements  of  domestic  circles,  we  believe 
it  will  be  admitted  that  music  is  both  the  most  prominent  and  one  of  the  most  rational.  Now,  a  work  con- 
taining a  hundred  pieces  of  the  choicest  kinds,  written  or  selected  by  a  man  of  t«ste,  experience  and  skill, 
like  the  well-knowu  editor  of  the  book  before  us  ;  one  also,  who  can  adapt  those  pieces  with  regard  to  the  ca- 
pabilities of  amateur  musicians,  put  them  in  neat  style  to  the  musical  world,  and  at  so  very  reasonable  ex- 
pense, must  needs  be,  as  we  have  said,  a  public  benefactor.  We  presume  this  excellent  volume  will  have  an 
immense  circulation,  as  well  from  its  convenient  size  as  a  hand-book,  as  from  the  fact  of  its  comprising 
within  its  cover,  a  whole  treasury  of  musical  riches." — Anglo  American. 

11  This  is  a  work  which  has  been  long  needed  ;  it  will  prove  a  source  of  great  satisfaction  to  professors  as 
well  as  amateurs  ;  the  more  so  as  the  different  arrangements  in  it  are  easily  conceived,  and  based  on  correct 
principles."—  W.  Scharfenberg. 

"  The  judgment  shown  in  arranging  popular  melodies,  as  well  as  the  merits  of  the  original  pieces,  must 
lender  the  New- York  Glee  Book  highly  acceptable  to  the  public." — Wm.  Blondel. 

"  On  the  whole,  it  is  undoubtedly  the  best  and  cheapest  work  of  its  class  ever  published  in  this  or  any  other 
country.  The  original  contributions  by  the  editor  are  graceful  and  musician-like  compositions,  and  the  re- 
mainder selected  or  arranged  by  hiiu,  are  in  admirable  taste  :  it  is  a  work  eminently  calculated  to  cultivate 
and  refine  the  general  taste  for  this  species  of  composition." — Henry  C.  Watson.. 

HERSHBERGER  H.  R. 

THE     HORSEMAN; 
A  work  on  Horsemanship,  with  Rules  for  Riding,  and  Hints  on  the  selection  of  Horses. 

With  30  engravings.     1  vol.  12mo.,  muslin,  $1  00. 

"  A  work  of  great  utility  and  value  to  all  who  are  desirous  of  acquiring  the  science  of  Horsemanship  ;  it  being 
a  characteristic  feature  of  the  present  production  to  reduce  that  subject  to  systematic  exactness.  It  also  in- 
cludes copious  instructions  on  the  Sword  Exercise,  and  others  matters  of  interest  to  the  service,  forming  alto- 
gether a  complete  military  manual." — Dem.  Rev. 

MADAME  DE  STAEL'S  CORINNE. 
CORINNE;    OR,    ITALY, 

With  Poetic  Illustrations  by  L.  E.  L.  1  vol.  8vo.  Price  50  cents. 
This  exquisite  work  of  fiction — the  acknowledged  chef  d'auvre  of  Madame  De  Stael, — has  been  long  re- 
garded by  the  reading  community  as  one  of  the  classics  of  modern  times.  It  will  be  sufficient  for  those  who 
may  not  already  have  enjoyed  the  privilege  of  its  perusal,  to  subjoin  a  brief  allusion  to  its  high  merits  taken 
from  the  published  diary  of  the  late  Sir  James  Mackintosh.  No  mean  authority  in  literary  criticism  ;  he 
gave, — "  I  have  not  received  the  original,  yet  I  can  no  longer  refrain  from  a  translation  • — the  second  and  third 
volumes  I  swallow  slowly,  that  1  may  taste  every  drop  :  I  prolong  my  enjoyment  and  really  dread  its  termina- 
tion. It  is  a  powerful  and  extraordinary  book,  a  single  sentence  of  which  has  excited  more  feeling,  and  ex- 
ercised more  reason,  than  the  most  esteemed  models  of  elegance  !  The  poetical  contributions  of  L.  E.  L.  add 
much  to  the  value  of  this  edition. 

MRS.   SEDGWICK'S    NEW   WORK. 

ALIDA;   OR,   TOWN   AND  COUNTRY. 

By  the  author  of  "  ALLEN  PREBCOTT,"  &c.  1  vol.  8vo. 
Price  50  cents. 

THE  MEMOIRS  OF   SILVIO   PELLICO ; 

OR,    MY    PRISONS. 

Translated  by  SMEAD  and  LEFEBVRE.     1  vol.  8vo.,  paper,  25  cents. 

"  These  memoirs  are,  in  many  instances,  truly  affecting,  and  replete  with  passages  of  the  noblest  feeling  ; 
they  contain  a  recital  of  evils  suffered  by  the  author,  and  an  avowal  of  consolations  to  be  found  in  the  greatest 
misfortunes.  Many  scenes  are  described  in  a  most  vivid  and  graphic  manner,  and  altogether  the  work  is  of  a 
most  interesting  character."— N.  Orleans  Crescent. 

THE  MYSTERIES  OF  THE  HEATHS. 

Translated  from  the  French,  by  GEORGE  FLEMING.    8vo.,  paper,  25  cents. 
"  One  of  the  most  interesting  and  exciting  books  ever  published." 

THE    M'KENZIE    CASE. 

The  Proceedings  of  the  Court  of  Inquiry  and  Court  Martial,  with  an  elaborate  Review. 

By  JAMES  F.  COOPER.     I  vol.  8vo  ,  muslin,  $1  50- 

The  abiorbing  interest  which  the  tragic  occurrences  on  board  the  ill-fated  brig  Somera,  under  command  of 
Caj*.  M'Kenzie,  has  awakened  throughout  the  whole  country  as  well  as  in  Europe,  will  impart  to  this,  the 


8   ASTOR   HOUSE,    NEW-YORK 


only  complete  and  authorized  record  of  the  facts,  great  and  permanent  value  :  added  to  which,  the  work  in- 
cludes an  elaborate  review  of  the  whole  subject  by  Ja.-r.es  Feunimore  Cooper,  Esq.,  occupying  nearly  one 
hundred  pages. 

A  BOOK  FOR  FAMILY  USE. 
A    TREATISE    ON    FOOD    AND    DIET, 

With  Observations  on  the  Dietical  Regimen  suited  for  disordered  states  of  the  Digestive  Or. 
gans,  &-c.  &c.  By  JONATHAN  PEREIRA,  M.  D.  F.  R,  S.  Edited,  by  express  Desire  of  the 
Author,  by  Dr.  CHARLES  A.  LES. 

1  vol.  8vo.     Price,  muslin,  $1  25,  paper,  $1  00. 

"  This  treatise  contains  much  valuable  information,  conveyed  in  a  form  which  will  interest  while  it  in- 
structs. No  family  should  be  without  it  ;  since  it  will  instruct  and  guide  to  a  proper  treatment  of  symptoms 
of  disease,  where  the  impossibility  of  obtaining1  medical  aid  might  otherwise  pr<n-e  fatal.  As  the  effective  de- 
tector of  adulteration  in  food,  it  is  most  valuable  ;  while  the  instructions  for  preparing  diet  are  excellent,  and 
will  economize  outlay  in  the  general  consumption,  as  well  as  direct  to  the  use  of  the  kind  of  diet  best  suited 
to  the  preservation  and  promotion  of  health." 

"  A  work  of  this  kind  has  long  been  a  desideratum,  and  the  task  of  its  execution  conld  scarcely  have  fallen 
into  better  hands.  The  author,  as  Dr.  LEE  justly  remarks,  in  his  preface,  '  is  well  known  throughout  Europe 
and  America,  as  a  physician  of  great  experience  and  accurate  observation  —  and  one  of  the  most  learned,  sci- 
entific, and  practical  men  of  the  age.'  His  work  differs  from  former  treatises  on  the  subject  of  diet  in  this, 
that  instead  of  advocating  a  particular  theory,  to  which  facts  however  unaccommodating  must  bend,  the  ac- 
complished writer  brings  to  his  undertaking  a  most  perfect  knowledge  of  the  laws  of  digestion,  nutrition,  phy- 
siology, and  chemistry,  and  gives  the  results  of  elaborate  investigations  rather  than  crude  and  often  false 
theories."  —  Buffalo  Commercial. 

"  This  work,  which  exhibits  a  detailed  and  individual  account  of  alimentary  substances,  is  one,  whose 
merits,  both  as  regards  its  immediate  practical  utility,  and  its  general  character  in  the  way  of  elaborate  re- 
search, cannot  fail  to  gam  it  a.  place  not  only  in  the  library  of  the  physician  and  general  scholar,  but  upon  the 
counter  of  the  apothecary  —  ay,  and  even  upon  the  shelf  of  the  kitchen."  —  N.  Y.  Journal  of  Medicine. 

"  This  treatise  has  strong  claims  to  notice,  not  only  from  the  reputation  which  its  author  has  established  bjr 
his  'Elements  of  Materia  Medica  and  Therapeutics,'  but  also  by  its  own  merits.  It  is  indeed  a  work  of  a 
highly-scientific  character,  in  which  respect,  it  differs  from  most  of  its  predecessors.  The  work  is  extremely 
valuable  for  reference  ;  and  in  copiousness  and  minuteness  of  its  chemical  details,  it  takes  precedence  of  any 
other  on  the  subject  that  has  yet  appeared."  —  Hay's  Medical  Journal. 

"  A  complete  manual  for  the  valetudinarian."  —  John  Bull. 

"  We  urge  every  one  to  read  it,  as  the  production  of  a  medical  philosopher,  and  one  of  the  first  physicians  of 
the  age."  —  London  Atlas. 

JAMES'S  LAST  HISTORICAL  WORK. 

Life  and  Times  of  Richard  Coeur-de-Lion, 

By  G.  P.  R.  JAMES,  ESQ., 

Author  of  "  Richelieu,"  and  "  The  Ancient  Regime,"  &c.  &c.    2  vols.  12mo. 
Price  $1  50,  muslin. 

"Thi«  new  historical  work  by  the  author  of  'Richelieu,  'is  characterized  by  all  the  usual  fascinations  of 
style  for  which  his  pen  Is  so  distinguished  :  he  has  also  chosen  an  epoch  in  English  history,  the  most  romantic 
and  chivalrous  that  'could  have  been  selected,  and  the  result  has  been,  he  has  given  us  a  most  interesting  and 
attractive  book."  —  Boston  Post. 

"  Indeed,  the  general  history  of  the  period  of  which  he  writes,  is  so  rich  and  interesting,  that  had  the  sub- 
ject of  the  Life  of  Richard  fallen  into  far  inferior  hands,  a  readable  and  entertaining  work  might  have  been 
reasonably  expected."—  Albany  Evening  Journal. 

ALEX.  DUMAS'  NEW  WORK, 

Second  edition,  in  one  vol.  12mo.     Price  $1  00,  muslin. 

THE  PROGRESS  OF  DEMOCRACY, 

Illustrated  in  the  History  of  Gaul  and  France,  from  the  earliest  period  to  the  present  day. 
Translated  from  the  French  of  Alex.  Dumas,  by  an  American. 

"As  a  historian,  our  author  has  displayed  eminent  ability,  as  the  work  now  before  us  abundantly  tertjfiw  ; 
its  style,  moreover,  is  the  most  delightfully  interesting  that  we  remember  ever  to  have  met  with."—  hmcker- 

b<*"The  political  theory  of  the  work  is  original,  striking,  and  beautifully  developed.»--PA»Ja.  ledger. 
"  One  of  tbe  most  valuable  as  well  as  interesting  compends  that  has  appeared.  —  Botton  Atlas. 
"  This  work  is  one  of  the  most  valuable,  as  well  as  most  attractive,  historical  compends  that  h*ve  teen  pub- 


l^fy^^S^oo^  of  the  day;  full  of  striking  and  profound  reflection,^ 
enlivened  by  a  style,  the  raciaeis  and  brilliancy  of  which  no  living  French  writer  can  surpass."-  JV.  Y.  Co 

"%  wl  *™°  'SSFot  an  opportunity  to  call  the  attention  of  our  readers  to  this  work  in  an  Engtoh  drew:  a 
worMhrist  original  in  design,  and  at  least  among  the  most  able  in  execution,  of  all  contemporary  produc. 


««Th«wora       companion  for  the  celebrated  volumes  of  De  Tocqueville,  which  h.ve  recently  been 
Issned  in  a  splendid  edition,  by  the  same  publishers."—  Brother  Jonathan. 


JO  HENRY  G.   LANGLEY'S  PUBLICATIONS. 

SIMMS'   LIFE   OF   MARION. 
LIFE    OF    GENERAL    FRANCIS     MARION, 

BY  THE  AUTHOR  OP  "Guv  RIVKJIS," 

With  numerous  Engravings.     1  vol.  12mo.     Ready  in  June.    $1  00. 

"  Few  characters  have  stood  out  more  boldly  on  our  Revolutionary  Annals,  -who  hare  supplied  more  ^in- 
teresting and  exciting  materials  for  the  historian,  than  that  of  General  Marion  ;  and  it  is  not  saying  too  much 
to  claim  for  the  work  before  us  no  less  the  merit  of  accredited  historical  truth,  than  the  most  stirring  and  ab- 
sorbing attributes  of  high-wrought  fiction." — Democratic  Review. 

D'lSRAELI'S   NEW   WORK. 

SIXTH   EDITION. 

THE   AMENITIES  OF   LITERATURE, 

By  J.  D'ISRAELI,  ESQ. 

Author  of  "  The  Miscellanies  of  Literature,"  "  The  Curiosities  of  Literature,"  beautifully 
printed  in  two  vols.  12mo.    Price  $2  25,  muslin.- 

"  Quite  worthy  of  an  author  who  has  done  perhaps  more  than  any  other  to  illustrate  and  adorn  the  English 
language  and  literature  :  this  work  will  rank  in  all  public  and  private  libraries  with  the  author's  previous  de- 
lightful miscellanies,  "The  Curiosities  of  Literature,"  "The  Miscellanies  of  Literature,"  &c. — New  World. 

"  The  volumes  are  as  invaluable  and  curious  as  interesting,  and  form  history  enough  of  the  subject  for  anv 
save  the  antiquary — and  no  modern  history  would  content  him." — Brother  Jonathan. 

"  AMENITIES  OF  LITERATURE. — We  have  ever  considered  the  author  of  these  volumes  as  a  literary  bene» 
factor,  one,  who  in  his  own  peculiar  province  has  done  more  to  advance  the  cause  of  letters  than  any  other 
writer,  by  rescuing  from  oblivion,  and  doing  justice  to  the  primitive  sons  of  genius  who  laid  the  basis  of  Eng- 
lish literature.  '  The  Amenities'  we  regard  superior  to  its  brothers,  '  The  Curiosities'  and  '  The  Miscellanies,' 
inasmuch  that  there  is  more  unity  in  its  design,  a  greater  depth  of  research,  and  as  it  were,  a  kind  of  history 
of  the  minds  of  authors  as  well  as  of  their  writings.  Like  whatever  comes  from  the  pen  of  this  accomplished 
individual,  it  is  remarkable  for  purity  of  style  and  interesting  anecdote,  and  must  become  an  especial  favourite 
with  all  classes  of  readers." — Lit.  Gaz. 

MISCELLANIES  OF  LITERATURE, 

By  J.  D'IsRAELi,  ESQ. 
Author  of  "  The  Amenities  of  Literature,"  "  Curiosities  of  Literature." 

Three  vols.  12mo.   New  Edition,  with  numerous  Additions  and  Revisions  by  the  author. 

Price  $3  00,  muslin. 

"  In  the  volumes  before  us,  there  is  not  an  uninteresting  line  from  title  page  to  finis." — Bro.  Jonathan, 

"  It  is  a  work  that  enchains  you  from  beginning  to  end  ;  in  the  perusal  of  which  you  feel  reluctant  to  pause, 
till  you  find  yourself  compelled  by  the  unwelcome  finis." — Merchants'1  Magazine. 

"  This  valuable  work  puts  us  at  once  into  fellowship  with  the  master  spirits  of  the  past,  and  brings  up  the 
scenes  and  events  of  other  days  with  life-like  freshness.  This  work  supplies  us  with  what  we  hare  long 
needed — a  home  description  of  literature  and  the  master  builders  of  it ;  their  difficulties,  hardships,  dispo- 
sitions, social  wants  and  pleasures.  It  is  a  good  counterpart  to  the  '  Curiosities  of  Literature,'  and  like  that 
will  amuse  as  well  as  instruct." — Neto  Yorker. 

"  The  writings  of  D'Israeli  belong  to  a  class  no  less  peculiar  in  their  character,  than  they  are  valuable  in 
their  kind.  Few  authors  have  laboured  so  assiduously,  or  rendered  such  efficient  service  to  the  iaterests  of 
literature.  His  style  is  pre-eminent  for  its  nervousness  and  classic  beauty,  and  it  is  doubtless  to  this  cause  no 
less  than  to  the  immense  collection  of  amusing  and  characteristic  anecdote  which  he  has  supplied  that  we  are 
to  ascribe  the  high  estimation  with  which  his  former  writings  have  been  received.  We  cordially  recommend  these 
delightful  volumes  to  all  who  can  appreciate  the  pleasing  combination  of  the  utile  et  dulce  in  books." — New  World, 

"  Take  up  either  of  the  volumes,  and  open  where  you  please,  the  reader  will  at  once  find  his  attention 
chained  by  something  curious  and  new,  though  very  old :  indeed,  for  casual  and  curious  reading  D'Israeli  is 
incomparable." — N.  Y.  American. 

"  Had  this  popular  author  now  for  the  first  time  appeared  before  the  reading  world,  these  volumes  would  be 
amply  sufficient  to  ensure  him  a  proud  rank  among  the  first  writers  of  the  age.  The  work  abounds  in  enter- 
taining anecdotes,  pertinent  quotations,  and  philosophical  reflections  ;  there  is  a  power  of  thought  and  patient 
research  manifested  throughout  which  has  rarely  if  ever  been  equalled." — The  Classic. 

ON    CAPITAL    PUNISHMENT. 

Second  Edition.    Priee  50  cents  paper,  or  75  cents  muslin. 

REPORT   IN   FAVOUR  OF   THE   ABOLITION   OF   THE    PUNISHMENT  OF   DEATH    BY    LAW, 

Made  to  the  Legislature  of  the  State  of  New- York,  April  14,  1841. 

BY  JOHN  L.    O'SULLIVAN, 
Member  of  the  Assembly  from  the  City  of  New- York. 

THE   ANTHROPOLOGICAL  WORKS 

OF    ALEXANDER    WALKER. 

New  Complete  Uniform  Edition  in  three  volumes.    Price  $3  75,  muslin. 
As  an  evidence  of  the  great  value  of  these  popular  writings  on  Physiological  Science,  it  is 
sufficient  to  state  that  oven  forty  thousand  copies  of  his  several  works  have  been  sold  since 
their  first  appearance  in  the  United  States.     These  works  comprise  a  large  amount  of 


8,    ASTOR    HOUSE,    NEW-YORK. 


curious  and  valuable  information,  equally  adapted  for  popular  use,  and  the  advancement 
of  science. 

"  If  e  vei  writer  chose  an  attractive  theme,  Mr.  Walker  is  certainly  that  writer.  His  volumes  contain  a  vast 
fund  of  original,  profound,  acute,  curious,  and  amusing  observation,  highly  interesting  to  all." — London  Lite- 
rary Gazette. 

"A  rich  accession  to  our  literature  in  every  sense.  The  author  comes  to  the  performance  of  his  work  with 
qualifications  of  a  high  order,  and  has  supported  it  with  extensive  philosophical  research,  and  delirhtful  »t- 
;ractions  in  illustrative  anecdote."— Spectator. 

INTERMARRIAGE; 

Or,  the  Mode  in  which,  and  the  Cause*  why,  Beauty,  Health  and  Intellect,  result  from  cor. 
tain  Unions ;  and  Deformity,  Disease,  and  Insanity  from  others.  Illustrated  by  Drawings. 
By  ALEXANDER  WALKER.  With  an  Introductory  Preface  and  Notes  by  an  American 
Physician.  Eighteenth  Edition,  in  one  vol.  12mo.  Price  $1  25,  muslin. 

WOMAN; 

Physiologically  considered  as  to  Mind,  Morals,  Marriage,  Matrimonial  Slavery,  Infidelity 
and  Divorce.  By  ALEXANDER  WALKER,  author  of  "  Intermarriage,"  with  Note*  and  an 
Appendix,  adapting  the  work  to  this  country,  by  an  American  Physician.  Tenth  Edition, 
in  one  vol.  12mo.  Price  $1  25. 

BEAUTY; 

Illustrated  chieflv  by  an  analysis  and  classification  of  Beauty  in  Woman.  By  ALEXANDER 
WALKER.  With  Notes  and  an  Explanatory  Introduction,  by  an  American  Physician. 
Sixth  Edition,  in  one  vol.  12mo.  Price  $1  25,  muslin. 

"  We  have  read  this  work  with  great  delight ;  the  subject  is  treated  in  a  masterly  manner.  To  a  complete 
knowledge  of  the  scientific  part  of  his  subject,  the  author  adds  immense  practical  information,  and  an  elegance 
of  style  rarely  found  in  works  of  science.''— London  Aihenteum. 

PATHOLOGY 

FOUNDED   ON   THE    NATURAL   SYSTEM   OF    ANATOMY   AND   PHYSIOLOGY, 

By  ALEXANDER  WALKER. 

A  Philosophical  Sketch,  in  which  the  natural  classification  of  diseases,  and  the  distinction 
between  morbid  and  curative  symptoms,  afforded  by  pain  or  its  absence,  are  pointed  out,  as 
well  as  the  errors  of  Homoeopathy  and  other  hypotheses.  One  vol.  Price  75  cents,  muslin. 

Another  work  from  the  pen  of  this  popular  Physiologist,  embracing  a  new  order  of  subjects,  though  not  the 
less  interesting,  as  the  title  fully  exhibits.  To  the  many  admirers  of  his  former  works,  this  new  production 
cannot  fail  of  receiving  a  cordial  welcome. 

THE    HOSPITALS  AND   SURGEONS  OF   PARIS. 

A  General,  Historical,  and  Statistical  Account  of  the  Public  Hospitals  of  Paris,  with  Bio- 
graphical Notices  of  the  most  Distinguished  Living  French  Surgeons. 
By  F.  CAMPBELL  STEWART,  M.D. 
1  vol.  8vo.,  muslin,  $2  00. 

"  The  author  of  this  very  agreeable  bo^k  has  succeeded  admirably  in  making  a  volume  that  will  be  read  with 
deep  interest  by  persons  both  within  and  without  the  pale  of  the  profession.  Witho-it  claiming  any  thing  ou 
the  score  of  originality  of  thought.  Dr.  Stewatt  is  entitled  to  the  praise  of  having  collected  •>.  lanr-;  nr,n,unt  of 
that  very  kind  of  matter  about  which  every  one  is  solicitous  to  know  someming  :  wo  know  of  no  substitute  for 
it,  and  therefore  recommend  it  strongly  to  our  friends." — Boxttm  Medical  Journal. 

"  This  work  contains  much  useful  and  interesting  matter  connected  with  tho  vin  >us  Medical  Institutions 
cf  Paris.  We  know  of  no  work  which  gives  the  requisite  amount  of  information  in  KJ  small  a  space  as  the 
present  volume.  To  the  young  physician  who  purposes  finishing  his  professional  education  abroad,  it  is  iu- 
valuable."— Plebeian. 

THE  RUINS  OF  CENTRAL  AMERICA. 

In  one  beautifully-printed  volume  octavo,  embellished  by  nearly  fifty  Illustrations,  executed 
in  a  novel  and  effective  style,  from  drawings  taken  on  the  spot. 

RAMBLES   IN   YUCATAN; 

OR,  NOTES  OF  TRAVEL  THROUGH  THE  PENINSULA, 

INCLUDING   A  VISIT  TO   ITS   REMARKABLE   RUINS, 

BY    A    MODERN    ANTIQUARY. — Price  $2   00. 

This  beautiful  volume,  besides  presenting  a  synoptical  ace  -unt  of  thos>e  interesting 
restiges  of  antiquity  in  Central  America,  which  have  become  recently  BO  much  the  objects 
of  public  attention,  will  be  found  to  comprise  a  Geographical,  Politicnl,  and  Statistical  de. 


12  HENRY    G.    LANGLEY'S    PUBLICATIONS. 

scription  of  Yucatan,  and  the  ancient  cities  of  Chichen,  Kabah,  Zayi,  Uxmal,  and  also 
other  places  not  previously  visited  by  any  other  tourist ;  including  a  graphic  and  detailed 
account  of  their  numerous  stupendous  ruins, — and  an  unique  collection  of  rare  and  curious 
Idols,  which  have  never  before  been  discovered  :  to  which  is  appended  notices  of  the  man. 
ners  and  customs  of  the  present  inhabitants  of  the  peninsula,  including  brief  historical 
sketches  of  its  churches,  colleges,  and  other  public  institutions,  &c.  &c. 


The  following  are  among  the  principal  embellishments: — Frontispiece  in  colours, — Vignette, — The  Temple,— 
The  Pyramid  at  Chichen,— The  House  of  the  Caciques,— The  Front  View  of  the  House  of  the  Caciques,— The 
Nun's  House,— Pyramids,— Uxmil  Rums,— The  Governor's  House,— The  Pigeon  Houses,— The  Fascade  of 
Governor's  House, — Zayi  Ruins, — Lonato,  or  Natural  Well, — The  Road  Side, — Yucateco  Indian  House, — The 
Plantain, — The  Agave  Americana, — Idols, — Map  and  Plans. 

STILL  MORE  REMARKABLE  RUINS  IN  CENTRAL  AMERICA. — We  have  lately  looked  over  some  drawings 
made  by  a  traveller,  recently  returned  from  Central  America,  representing  the  ruins  of  an  ancient  city,  not 
yet  visted  by  any  traveller,  which  are  perhaps  more  remarkable  than  evea  those  visited  by  Stephens  and  Ca- 
therwood."— N.'Y.  Evening  Post. 


SEQUEL  TO  THE  WORKS  OF  BURNS. 

Second  edition,  in  one  vol.  12mo.    Price  $1  00,  muslin. 

THE   LIFE   AND   LAND   OF   BURNS, 

By  ALLIN  CUNNINGHAM,  with  contributions  by  Thomas  Campbell,  Esq.,  Author  of  "  The 
Pleasures  of  Hope,"  to  which  is  prefixed  an  Essay  on  the  Genius  and  Writings  of  Burns, 
by  Thomas  Cariyle,  Esq. 

<c  This  book  is  invaluable  as  completing  Ihe  wtrks  of  Burns,  and  as  being  also  illustrative  of  them."—  Cin- 
cinnati Gazette. 

"  Written  with  all  a  poet's  thought  and  feeling." — Tattler. 

"  Another  tribute  to  the  memory  of  one  of  the  truest  poets  that  the  world,  perhaps,  has  ever  seen.  This 
posthumous  volume  will  be  regarded  of  peculiar  and  permanent  value,  as  being  a  sequel  to  all  editions  of  the 
writings  of  the  poet  extant,  to  which  it  is  the  clue  for  their  complete  elucidation.  The  Essay  of  Cariyle,  in- 
cluded in  the  present  work,  is  a  splendid  effort,  and  among  the  finest  specimens  of  this  original  and  beautiful 
writer.  The  work  will  commend  itself  not  only  to  every  eon  of  Scotia,  but  to  all  the  admirers  of  poetry 
throughout  our  wide-spread  borders." — New  World. 

"All  the  admirers  of  Scotland's  sweetest  bard — and  who  will  acknowledge  that  he  is  not  one  ? — will  be  de- 
lighted with  this  volume,  filled  as  it  is  with  various  rominiscenses  and  particulars  about  him,  that  have  never 
before  appeared.  It  would  be  enough  to  say  that  it  is  a  joint  tribute  to  the  memory  of  the  poet  of  nature,  by 
Cunningham,  Campbell,  and  Cariyle  ;  but  it  has  even  more  than  this  to  recommend  it.  It  has  several  original 
letters,  never  before  published  in  this  country,  and  is  altogether  one  of  the  pleasantest  books  that  have  ap- 
peared for  a  long  while.'' — N.  Y.  Review. 

RYAN'S    ALGEBR A— Price  $1  00,  sheep. 

AN  ELEMENTARY  TREATISE  ON  ALGEBRA; 

Theoretical  and  Practical,  adapted  for  Schools,  Colleges,  &c.,  by  JAMBS  RYAN  ;  to  which  is 
added  an  Appendix  by  Robert  Adrain,  Professor  of  Mathematics  in  Columbia  College. 
Eighth  edition,  greatly  enlarged  and  improved  by  the  author. 

BEAUTIFUL  NEW  JUVENILES. 

New  Edition  with  numerous  beautiful  coloured  drawings. 

ROBIN  HOOD  AND  HIS  MERRY  FORESTERS. 

'By  STEPHEN  PERCY,  Author  of  the  "  Kings  of  England,"  &c. 
Price  $1  00,  coloured — plain  75  cents. 

TALES    FROM    THE 

ARABIAN  NIGHTS'   ENTERTAINMENTS, 

Entirely  re-written  and  adapted  for  Children.     Embellished  with  nearly  fifty  beautiful 
illustrations.    Price  75  cents,  muslin,  gilt. 

THE    ANNALS    OF  THE    POOR: 

Comprising  "  The  Dairyman's  Daughter,"  "  The  Negro  Servant,"  "  The  Young  Cottager," 
"  The  Cottage  Conversation,"  "  A  visit  to  the  Infirmary,"  &c. 

By  REV.  LEGH  RICHMOND. 
A  new  edition,  enlarged  and  illustrated  with  an  Introductory  Sketch  of  the  author,  by  Rev. 

John  Ayre,  A.M.     1  vol.  18mo.  cloth  gilt.     With  plates.     Price  75  cents,  muslin. 
"  The  above  popular  works  need  no  recommendation,  having  been  long  among  the  choicest  works  designed 
for  present-books  for  the  youn» :— it,  is  only  necessary  to  allude  to  the  elegant  style  in  which  the  present  editions 
Lave  been  produced,  and  which  entiiln  th«m  to  take  rank  with  the  best  specimens  of  the  day. 


IENRY  K 


